Federal Register / Vol. 78, No. 220 / Thursday, November 14, 2013 / Rules and Regulations 68365 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2013–0407; FRL–9902–53– 

Region 3] 

Approval and Promulgation of Air 

Quality Implementation Plans; Virginia; 

Removal of the Regulation for the 

National Low Emission Vehicle 

Program 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is taking direct final 

action to approve a revision to the 

Virginia State Implementation Plan 

(SIP). The revision removes Virginia’s 

repealed regulation for the National Low 

Emission Vehicle (NLEV) program from 

the Virginia SIP. Virginia repealed its 

regulation in December 2011, because 

the NLEV program was superseded by 

more stringent Federal Tier 2 passenger 

car and light-duty truck standards, 

which were promulgated by EPA on 

February 10, 2000. The Federal Tier 2 

vehicle standards, which were 

implemented on a phased-in basis 

between model years 2004 and 2006, 

marked the expiration of the NLEV 

program, per the framework established 

by the NLEV program at its inception. 

Therefore, EPA is approving this 

revision to remove Virginia’s repealed 

NLEV regulation from the Virginia SIP, 

in accordance with the requirements of 

the Clean Air Act (CAA). 

DATES: This rule is effective on January 

13, 2014 without further notice, unless 

EPA receives adverse written comment 

by December 16, 2013. If EPA receives 

such comments, it will publish a timely 

withdrawal of the direct final rule in the 

Federal Register and inform the public 

that the rule will not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2013–0407 by one of the 

following methods: 

A. www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

B. Email: fernandez.cristina@epa.gov. 

C. Mail: EPA–R03–OAR–2013–0407, 

Cristina Fernandez, Associate Director, 

Office of Air Program Planning, 

Mailcode 3AP30, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. 

D. Hand Delivery: At the previouslylisted EPA Region III address. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R03–OAR–2013– 

0407. EPA’s policy is that all comments 

received will be included in the public 

docket without change, and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or email. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an email 

comment directly to EPA without going 

through www.regulations.gov, your 

email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. 

Docket: All documents in the 

electronic docket are listed in the 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in www.regulations.gov or 

in hard copy during normal business 

hours at the Air Protection Division, 

U.S. Environmental Protection Agency, 

Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

Copies of the State submittal are 

available at the Virginia Department of 

Environmental Quality, 629 East Main 

Street, Richmond, Virginia 23219. 

FOR FURTHER INFORMATION CONTACT: 

Brian Rehn, (215) 814–2176, or by email 

at rehn.brian@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Federal NLEV program was a 

voluntary, nationwide program to 

control emissions from new passenger 

cars and light-duty trucks, for the 

purpose of reducing the formation of 

ground level ozone and other air 

pollution emitting by new vehicles after 

the program took effect. Given the need 

for additional reductions of ozone 

precursor emissions in the Ozone 

Transport Region (OTR), the Ozone 

Transport Commission (OTC) states 

sought additional reductions from more 

stringent new vehicle standards than the 

Federal Tier 1 vehicle program that was 

in place at that time. The only option for 

more stringent vehicle emission 

standards afforded to the OTC states by 

the CAA was adoption of Low Emission 

Vehicle standards developed by 

California (CA LEV) to meet its own 

unique air quality goals. The OTC 

pressed for adoption of CA LEV 

throughout the OTR, in place of Federal 

Tier 1 vehicle emission standards, 

which commenced with the 1994 model 

year and were then in effect in most of 

the OTC member states (except New 

York and Massachusetts, which had 

already opted for CA LEV standards). 

Faced with complying with these 

differing vehicle emission standards 

across a ‘‘patchwork’’ of states across 

the United States, the auto 

manufacturers coordinated with OTC, 

environmentalists, fuel providers, and 

EPA, among others, to develop the 

NLEV program. 

On June 6, 1997 (62 FR 31192) and on 

January 7, 1998 (63 FR 926), EPA 

promulgated rules outlining the 

framework for the NLEV program. These 

NLEV rules allowed auto manufacturers 

to commit to meet tailpipe standards for 

passenger cars and light trucks that were 

more stringent than Federal Tier 1 

standards that were then mandatory 

under authority of Title II of the CAA. 

The NLEV regulatory framework was 

voluntary in that the program took effect 

only after the Northeast states and auto 

manufacturers agreed to participate in 

the NLEV framework and be bound by 

the standards. On March 9, 1998 (63 FR 

11374), EPA published a finding that 

the NLEV program was in effect, after 

the Governors of nine OTR states 

(Connecticut, Delaware, Maryland, New 

Hampshire, New Jersey, Pennsylvania, 

Rhode Island, Virginia, and the District 

of Columbia) and twenty-three U.S. 

market auto manufacturers agreed to 

participate. The NLEV framework 

became effective after these initial 

commitments, followed by 

incorporation of the states’ participation 


TKELleY on DSK3SPTVN1PROD with RULES
68366 Federal Register / Vol. 78, No. 220 / Thursday, November 14, 2013 / Rules and Regulations 

commitments being incorporated into 

each participating state’s SIP. 

Virginia’s adopted program rules 

covering its participation in the NLEV 

program (Regulation 9 VAC 5 Chapter 

200) on January 7, 1999. Virginia then 

submitted its adopted regulation as a 

SIP revision to EPA on May 27, 1999. 

EPA approved Virginia’s revision to the 

SIP through a final rule published on 

December 28, 1999 (64 FR 72564). 

In accordance with EPA’s NLEV 

regulatory framework rule, Virginia’s 

regulation established that the 

Commonwealth’s participation in the 

NLEV program would extend until 

model year 2006. However, if EPA 

adopted Federal Tier 2 standards that 

were more stringent than NLEV by 

December 15, 2000, Virginia’s rule 

limited participation in the NLEV 

program until model year 2004. 

On February 10, 2000, EPA published 

a final rule in the Federal Register (65 

FR 6698) adopting Federal Tier 2 

standards that were more stringent than 

the Federal NLEV program, 

commencing with model year 2004. 

Subsequently, Virginia repealed its 

NLEV regulation (9 VAC5–200), in its 

entirety, on December 2, 2011. 

II. Summary of SIP Revision 

On August 1, 2013, the 

Commonwealth of Virginia submitted a 

formal revision to its State 

Implementation Plan (SIP). The SIP 

revision serves to remove from the SIP 

Virginia’s NLEV regulation, which was 

adopted by the Commonwealth in 1999. 

By model year 2006, the Federal NLEV 

program had been fully superseded by 

Federal Tier 2 passenger car and lighttruck standards. Since the Federal Tier 

2 program was designed by EPA to 

supersede the NLEV program and was 

by design more stringent with respect to 

control of regulated vehicle emissions 

than the NLEV program it replaced, 

there is no need for a state repealing its 

NLEV regulations to determine whether 

the removal of these provisions from the 

SIP will interfere with any applicable 

requirement concerning attainment and 

maintenance of any applicable National 

Ambient Air Quality Standard (NAAQS) 

under section 110(l) of the Clean Air 

Act. 

Virginia’s NLEV regulation expired 

with the implementation of the Federal 

Tier 2 vehicle standards program, and in 

December 2011 Virginia repealed 

Regulation 9 VAC 5 Chapter 200, 

effective June 7, 2012. 

III. 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 § 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 § 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 

programs 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. 

IV. Final Action 

EPA is approving Virginia’s SIP 

revision to remove the now expired 

NLEV program from the SIP to reflect 

Virginia’s repeal of its NLEV program 

regulation at the state level. EPA is 

publishing this rule without prior 

proposal because EPA views this as a 

noncontroversial amendment and 

anticipates no adverse comment. 

However, in the ‘‘Proposed Rules’’ 

section of today’s Federal Register, EPA 

is publishing a separate document that 

will serve as the proposal to approve the 

SIP revision if adverse comments are 

filed. This rule will be effective on 

January 13, 2014 without further notice 

unless EPA receives adverse comment 

by December 16, 2013. If EPA receives 

adverse comment, EPA will publish a 

timely withdrawal in the Federal 

Register informing the public that the 

rule will not take effect. EPA will 

address all public comments in a 

subsequent final rule based on the 

proposed rule. EPA will not institute a 

second comment period on this action. 

Any parties interested in commenting 

must do so at this time. 


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Federal Register / Vol. 78, No. 220 / Thursday, November 14, 2013 / Rules and Regulations 68367 

V. Statutory and Executive Order 

Reviews 

A. General Requirements 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

B. Submission to Congress and the 

Comptroller General 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

C. Petitions for Judicial Review 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by January 13, 2014. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. Parties with 

objections to this direct final rule are 

encouraged to file a comment in 

response to the parallel notice of 

proposed rulemaking for this action 

published in the proposed rules section 

of today’s Federal Register, rather than 

file an immediate petition for judicial 

review of this direct final rule, so that 

EPA can withdraw this direct final rule 

and address the comment in the 

proposed rulemaking action. This 

rulemaking action to remove Virginia’s 

NLEV program from the Virginia SIP 

may not be challenged later in 

proceedings to enforce its requirements. 

(See section 307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Nitrogen dioxide, Ozone, 

Reporting and recordkeeping 

requirements, and Volatile organic 

compounds. 

Dated: September 30, 2013. 

W.C. Early, 

Acting, Regional Administrator, Region III. 

40 CFR part 52 is amended as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart VV—Virginia 

■ 2. In § 52.2420, the table in paragraph 

(c) is amended by removing the entries 

for 9 VAC 5 Chapter 200 ‘‘National Low 

Emission Vehicle Program’’ in its 

entirety. 

[FR Doc. 2013–27029 Filed 11–13–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2010–0997; FRL–9901– 

38–Region 5] 

Approval and Promulgation of Air 

Quality Implementation Plans; Ohio; 

Ohio NOX SIP Call Rule Revisions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: On November 15, 2010, Ohio 

EPA submitted to EPA revisions to Ohio 

OAC 3745–14. EPA is approving these 

revisions under the Clean Air Act, 

which allows for Ohio’s Clean Air 

Interstate Rule (CAIR) NOX Ozone 

Season Trading Program rules to 

supersede Ohio’s nitrogen oxides (NOX) 

State Implementation Plan (SIP) Call 

Budget Trading Program rules, but leave 

other requirements of the NOX SIP Call 

in place for units not covered by CAIR. 

DATES: This rule is effective January 13, 

2014, unless EPA receives adverse 

comments by December 16, 2013. If 

adverse comments are received, EPA 

will publish a timely withdrawal of the 

direct final rule in the Federal Register 

informing the public that the rule will 

not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R05– 

OAR–2010–0997, by one of the 

following methods: 

1. www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

2. Email: aburano.douglas@epa.gov. 

3. Fax: (312) 408–2279. 

4. Mail: Douglas Aburano, Chief, 

Attainment Planning and Maintenance 

Section, Air Programs Branch (AR–18J), 

U.S. Environmental Protection Agency, 

77 West Jackson Boulevard, Chicago, 

Illinois 60604. 


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