15012 Federal Register / Vol. 79, No. 52 / Tuesday, March 18, 2014 / Rules and Regulations 

taking implications under Executive 

Order 12630, Governmental Actions and 

Interference with Constitutionally 

Protected Property Rights. 

9. Civil Justice Reform 

This rule meets applicable standards 

in sections 3(a) and 3(b)(2) of Executive 

Order 12988, Civil Justice Reform, to 

minimize litigation, eliminate 

ambiguity, and reduce burden. 

10. Protection of Children 

We have analyzed this rule under 

Executive Order 13045, Protection of 

Children from Environmental Health 

Risks and Safety Risks. This rule is not 

an economically significant rule and 

does not create an environmental risk to 

health or risk to safety that may 

disproportionately affect children. 

11. Indian Tribal Governments 

This rule does not have tribal 

implications under Executive Order 

13175, Consultation and Coordination 

with Indian Tribal Governments, 

because it does not have a substantial 

direct effect on one or more 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. 

12. Energy Effects 

This action is not a ‘‘significant 

energy action’’ under Executive Order 

13211, Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use. 

13. Technical Standards 

This rule does not use technical 

standards. Therefore, we did not 

consider the use of voluntary consensus 

standards. 

14. Environment 

We have analyzed this rule under 

Department of Homeland Security 

Management Directive 023–01 and 

Commandant Instruction M16475.lD, 

which guide the Coast Guard in 

complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have determined that this action is one 

of a category of actions that do not 

individually or cumulatively have a 

significant effect on the human 

environment. This rule involves 

establishment of a safety zone on a 

portion of Mission Bay, south of Fiesta 

Island and all navigable waters within 

600 feet of the fireworks barge, located 

in approximate position 32°46′03′′ N, 

117°13′11′′ W. 

This rule is categorically excluded 

from further review under paragraph 

34(g) of Figure 2–1 of the Commandant 

Instruction. An environmental analysis 

checklist supporting this determination 

and a Categorical Exclusion 

Determination are available in the 

docket where indicated under 

ADDRESSES. We seek any comments or 

information that may lead to the 

discovery of a significant environmental 

impact from this rule. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security Measures, 

Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1231; 46 U.S.C. 

Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 

33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; 

Pub. L. 107–295, 116 Stat. 2064; Department 

of Homeland Security Delegation No. 0170.1. 

■ 2. Add § 165.T11–620 to read as 

follows: 

§ 165.T11–620 Sea World San Diego 

Fireworks, Mission Bay; San Diego, CA. 

(a) Location. The safety zone will 

include the area within 600 feet of the 

fireworks barge in approximate position 

32°46′03′′ N, 117°13′11′′ W. 

(b) Enforcement Period. This rule is 

effective and will be enforced from 8:50 

p.m. to 10 p.m. on March 18, March 20, 

March 21, and March 22, 2014. 

(c) Definitions. The following 

definition applies to this section: 

designated representative, means any 

commissioned, warrant, or petty officer 

of the Coast Guard on board Coast 

Guard, Coast Guard Auxiliary, or local, 

state, and federal law enforcement 

vessels who have been authorized to act 

on the behalf of the Captain of the Port. 

(d) Regulations. (1) Entry into, transit 

through or anchoring within this safety 

zone is prohibited unless authorized by 

the Captain of the Port of San Diego or 

his designated representative. 

(2) Mariners requesting permission to 

transit through the safety zone may 

request authorization to do so from the 

Sector San Diego Joint Harbor 

Operations Center (JHOC). The Coast 

Guard Sector San Diego JHOC can be 

contacted on VHF–FM Channel 16. 

(3) All persons and vessels shall 

comply with the instructions of the 

Coast Guard Captain of the Port or his 

designated representative. 

(4) Upon being hailed by U.S. Coast 

Guard or designated patrol personnel by 

siren, radio, flashing light or other 

means, the operator of a vessel shall 

proceed as directed. 

(5) The Coast Guard may be assisted 

by other federal, state, or local agencies. 

Dated: February 20, 2014. 

S. M. Mahoney, 

Captain, U.S. Coast Guard, Captain of the 

Port San Diego. 

[FR Doc. 2014–05722 Filed 3–17–14; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2013–0510; FRL–9908–04– 

Region–3] 

Approval and Promulgation of Air 

Quality Implementation Plans; Virginia; 

Section 110(a)(2) Infrastructure 

Requirements for the 2010 Nitrogen 

Dioxide National Ambient Air Quality 

Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving 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 2010 nitrogen 

dioxide (NO2) NAAQS. 

DATES: This final rule is effective on 

April 17, 2014. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R03–OAR–2013–0510. All 

documents in the docket are listed in 

the www.regulations.gov Web site. 

Although listed in the electronic docket, 

some information is not publicly 

available, i.e., confidential business 

information (CBI) or other information 

whose disclosure is restricted by statute. 


sroberts on DSK5SPTVN1PROD with RULES
Federal Register / Vol. 79, No. 52 / Tuesday, March 18, 2014 / Rules and Regulations 15013 

1EPA notes that the Commenter inadvertently 

referred to 51 CFR 51.308(d). EPA assumes the 

commenter meant to refer to 40 CFR 51.308(d) 

which is the relevant provision requiring reasonable 

progress goals, calculation of baseline and natural 

visibility conditions, and a long term strategy. 

2See North Carolina v. EPA, 531 F.3d 896 (D.C. 

Cir. 2008) (finding CAIR inconsistent with 

requirements of CAA) and North Carolina v. EPA, 

550 F.3d 1176, 1178 (D.C. Cir. 2008) (remanding 

CAIR to EPA without vacatur because it found that 

‘‘allowing CAIR to remain in effect until it is 

replaced by a rule consistent with [the court’s] 

opinion would at least temporarily preserve the 

environmental values covered by CAIR’’). 

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 through 

www.regulations.gov or in hard copy for 

public inspection 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: 

Ellen Schmitt, (215) 814–5787, or by 

email at schmitt.ellen@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Summary of SIP Revision 

On August 5, 2013 (78 FR 47264), 

EPA published a notice of proposed 

rulemaking (NPR) for the 

Commonwealth of Virginia proposing 

approval of Virginia’s May 30, 2013 

submittal to satisfy several requirements 

of section 110(a)(2) of the CAA for the 

2010 NO2 NAAQS. In the NPR EPA 

proposed approval of the following 

infrastructure elements: Sections 

110(a)(2)(A), (B), (C) (for enforcement 

and regulation of minor sources and 

minor modifications), (D)(i)(II) (for 

visibility protection), (D)(ii), (E)(i), 

(E)(iii), (F), (G), (H), (J) (relating to 

consultation, public notification, and 

visibility protection requirements), (K), 

(L), and (M), or portions thereof. EPA is 

taking separate rulemaking action on the 

portions of section 110(a)(2)(C), 

(D)(i)(II), and (J) as they relate to 

Virginia’s prevention of significant 

deterioration (PSD) program and on 

section 110(a)(2)(E)(ii) as it relates to 

section 128 (State Boards). Virginia did 

not submit section 110(a)(2)(I) which 

pertains to the nonattainment 

requirements of part D, Title I of the 

CAA, since this element is not required 

to be submitted by the three year 

submission deadline of section 

110(a)(1), and will be addressed in a 

separate process. Virginia also did not 

include a component to address section 

110(a)(2)(D)(i)(I) as it is not required in 

accordance with the EME Homer City 

decision from the United States Court of 

Appeals for the District of Columbia 

Circuit, until EPA has defined a state’s 

contribution to nonattainment or 

interference with maintenance in 

another state. See EME Homer City 

Generation, LP v. EPA, 696 F.3d 7 (D.C. 

Cir. 2012), cert. granted, 2013 U.S. 

LEXIS 4801 (2013). Unless the EME 

Homer City decision is reversed or 

otherwise modified by the Supreme 

Court, states such as Virginia are not 

required to submit section 

110(a)(2)(D)(i)(I) SIPs until the EPA has 

quantified their obligations under that 

section. Therefore, EPA is not acting on 

110(a)(2)(D)(i)(I) for the 2010 NO2

NAAQS as Virginia made no submission 

for this element. 

The rationale supporting EPA’s 

proposed action, including the scope of 

infrastructure SIPs in general, is 

explained in the NPR and the technical 

support document (TSD) accompanying 

the NPR and will not be restated here. 

The TSD is available online at 

www.regulations.gov, Docket ID Number 

EPA–R03–OAR–2013–0510. 

II. Public Comments and EPA’s 

Responses 

EPA received a single set of comments 

on the August 5, 2013 proposed 

rulemaking action of Virginia’s 2010 

NO2 infrastructure SIP. These comments 

were provided by the National Parks 

Conservation Association (hereinafter 

referred to as ‘‘the commenter’’), and 

raised concerns with regard to EPA’s 

NPR. A full set of these comments is 

provided in the docket for today’s final 

rulemaking action. 

Comment 1: The commenter contends 

that EPA should disapprove Virginia’s 

2010 NO2 infrastructure SIP revision 

with regard to the visibility component 

of 110(a)(2)(D)(i)(II) because it relies 

upon reductions from the Clean Air 

Interstate Rule (‘‘CAIR’’). The 

commenter references the litigation in 

the D.C. Circuit related to CAIR, 

asserting that CAIR is not permanent 

and enforceable and Virginia’s reliance 

upon CAIR for its visibility protection 

duties under the CAA renders its 

reductions temporary, unenforceable, 

and illegal. The commenter asserts that 

EPA could not rely on CAIR to support 

its proposed approval of the visibility 

prong of Virginia’s 2010 NO2

infrastructure revision. The commenter 

states that EPA must also disapprove 

Virginia’s 2010 NO2 infrastructure SIP 

revision because it is inconsistent with 

the congressional mandate in section 

169A for the use of best available retrofit 

technology (BART) to improve visibility 

in Class I areas. The commenter also 

states that EPA and Virginia cannot use 

CAIR as a substitute for the explicitly 

mandated BART provisions of the CAA 

because it does not meet any 

exemptions allowed under the CAA. 

Additionally, the commenter states that 

compliance with CAIR does not meet 

any requirement for such an exemption 

as it does not impact the threshold 

BART issue of contribution to visibility 

impairment. The commenter states that 

there is simply no basis in the CAA to 

support a BART substitute, like CAIR, 

that has not been demonstrated to 

produce greater visibility improvement 

in all Class I areas. 

Furthermore, the commenter states 

that the requirements in ‘‘51 CFR 

51.308(d)’’ for reasonable progress goals, 

calculation of baseline and natural 

visibility conditions, and a long term 

strategy cannot be satisfied by broadly 

averaging emissions or visibility over a 

number of different Class I areas.1 The 

commenter states reasonable progress 

should be measured on an area-by-area 

basis to account for variability in source 

contribution and visibility conditions. 

The commenter asserts that if EPA 

approves Virginia’s CAIR visibility 

prong and allows CAIR-based 

exemptions to substitute emission 

reductions by non-BART sources for 

those from BART sources, BART 

sources will be controlled at levels less 

stringent than the application of sourceby-source BART would require and 

additionally asserted there is no 

guarantee that CAIR’s nitrogen oxide 

(NOX) reductions would occur at BART 

sources. The commenter claims EPA 

must disapprove the visibility provision 

in Virginia’s 2010 NO2 infrastructure 

SIP because CAIR was ‘‘vacated,’’ is not 

permanent and enforceable, and does 

not meet the requirements of section 

169A of the CAA. 

Response 1: EPA disagrees with the 

commenter that it must disapprove the 

visibility provision in Virginia’s 2010 

NO2 infrastructure SIP. First, EPA notes 

that CAIR has not been ‘‘vacated’’ as 

stated in the comment. As mentioned in 

EPA’s TSD, CAIR was ultimately 

remanded by the D.C. Circuit to EPA 

without vacatur, and EPA continues to 

implement CAIR.2 As explained in 

detail in today’s rulemaking action, EPA 

believes that in light of the D.C. Circuit’s 

subsequent decision to vacate the EPA 

rule known as the Cross State Air 

Pollution Rule (CSAPR), also known as 

the Transport Rule (see EME Homer 

City, 696 F.3d 7), and the court’s order 

for EPA to ‘‘continue administering 

CAIR pending the promulgation of a 


sroberts on DSK5SPTVN1PROD with RULES
15014 Federal Register / Vol. 79, No. 52 / Tuesday, March 18, 2014 / Rules and Regulations 

3Since the vacatur of CSAPR in August 2012 and 

with continued implementation of CAIR per the 

direction of the D.C. Circuit in EME Homer City, 

EPA has approved redesignations of areas to 

attainment of the 1997 fine particulate matter 

(PM2.5) NAAQS in which states have relied on CAIR 

as an enforceable measure. See 77 FR 76415 

(December 28, 2012) (redesignation of HuntingtonAshland, West Virginia for 1997 PM2.5 NAAQS, 

which was proposed 77 FR 68076 (November 15, 

2012)); 78 FR 59841 (September 30, 2013) 

(redesignation of Wheeling, West Virginia for 1997 

PM2.5 NAAQS, which was proposed 77 FR 73575 

(December 11, 2012)); and 78 FR 56168 (September 

12, 2013) (redesignation of Parkersburg, West 

Virginia for 1997 PM2.5 NAAQS, which was 

proposed 77 FR 73560 (December 11, 2012)). 

4Under CAA sections 301(a) and 110(k)(6) and 

EPA’s long-standing guidance, a limited approval 

results in approval of the entire SIP submittal, even 

of those parts that are deficient and prevent EPA 

from granting a full approval of the SIP revision. 

Processing of State Implementation Plan (SIP) 

Revisions, EPA Memorandum from John Calcagni, 

Director, Air Quality Management Division, 

OAQPS, to Air Division Directors, EPA Regional 

Offices I–X, September 7, 1992, (1992 Calcagni 

Memorandum) located at http://www.epa.gov/ttn/

caaa/t1/memoranda/siproc.pdf. Therefore, EPA 

believes it is appropriate to approve Virginia’s 2010 

NO2 NAAQS infrastructure SIP for section 

110(a)(2)(D)(i)(II) as it meets the requirements of 

that section despite the limited approval status of 

Virginia’s regional haze SIP. 

valid replacement,’’ it is appropriate for 

EPA to rely at this time on CAIR to 

support approval of Virginia’s 2010 NO2

infrastructure revision as it relates to the 

visibility prong. EPA has been ordered 

by the D.C. Circuit to develop a new 

rule, and to continue implementing 

CAIR in the meantime. Unless the 

Supreme Court reverses or otherwise 

modifies the D.C. Circuit’s decision on 

CSAPR in EME Homer City, EPA does 

not intend to act in a manner 

inconsistent with the decision of the 

D.C. Circuit. Based on the current 

direction from the court to continue 

administering CAIR, EPA believes that it 

is appropriate to rely on CAIR emission 

reductions for purposes of assessing the 

adequacy of Virginia’s infrastructure SIP 

revision with respect to prong 4 of 

section 110(a)(2)(D)(i)(II) for visibility 

protection while a valid replacement 

rule is developed and until submissions 

complying with any such new rule are 

submitted by the states and acted upon 

by EPA or until the EME Homer City 

case is resolved in a way that provides 

different direction regarding CAIR and 

CSAPR.3

Furthermore, as neither the 

Commonwealth nor EPA has taken any 

action to remove CAIR from the Virginia 

SIP, CAIR remains part of the federallyapproved SIP and can be considered in 

determining whether the SIP as a whole 

meets the requirement of prong 4 of 

110(a)(2)(D)(i)(II). EPA is taking final 

action to approve the infrastructure SIP 

submission with respect to prong 4 

because Virginia’s regional haze SIP, 

which EPA has approved in 

combination with its SIP provisions to 

implement CAIR adequately prevents 

sources in Virginia from interfering with 

measures adopted by other states to 

protect visibility during the first 

planning period.4

EPA disagrees with the commenter 

that the CAA does not allow states to 

rely on an alternative program such as 

CAIR in lieu of source-specific BART. 

EPA’s regulations allowing states to 

adopt alternatives to BART that provide 

for greater reasonable progress, and 

EPA’s determination that states may rely 

on CAIR to meet the BART 

requirements, have been upheld by the 

D.C. Circuit as meeting the requirements 

of the CAA. In the first case challenging 

the provisions in the regional haze rule 

allowing for states to adopt alternative 

programs in lieu of BART, the court 

affirmed EPA’s interpretation of CAA 

section 169A(b)(2) as allowing for 

alternatives to BART where those 

alternatives will result in greater 

reasonable progress than BART. Center 

for Energy and Economic Development 

v. EPA, 398 F.3d 653, 660 (D.C. Cir. 

2005) (finding reasonable the EPA’s 

interpretation of CAA section 

169A(b)(2) as requiring BART only as 

necessary to make reasonable progress). 

In the second case, Utility Air 

Regulatory Group v. EPA, 471 F.3d 1333 

(D.C. Cir. 2006), the court specifically 

upheld EPA’s determination that states 

could rely on CAIR as an alternative 

program to BART for EGUs in the CAIRaffected states. The court concluded that 

the EPA’s two-pronged test for 

determining whether an alternative 

program achieves greater reasonable 

progress was a reasonable one and also 

agreed with EPA that nothing in the 

CAA required the EPA to ‘‘impose a 

separate technology mandate for sources 

whose emissions affect Class I areas, 

rather than piggy-backing on solutions 

devised under other statutory categories, 

where such solutions meet the statutory 

requirements.’’ Id. at 1340. 

More fundamentally, EPA disagrees 

with the commenter that the adequacy 

of the BART measures in the Virginia 

regional haze SIP is relevant to the 

question of whether the 

Commonwealth’s SIP meets the 

requirements of section 110(a)(2)(D)(i) of 

the CAA with respect to visibility. EPA 

interprets the visibility provisions in 

this section of the CAA as requiring 

states to include in their SIPs measures 

to prohibit emissions that would 

interfere with the reasonable progress 

goals set to protect Class I areas in other 

states. The regional haze rule includes 

a similar requirement. See 40 CFR 

51.308(d)(3). EPA notes that on June 13, 

2012, EPA determined that Virginia’s 

regional haze SIP adequately prevents 

sources in Virginia from interfering with 

the reasonable progress goals adopted 

by other states to protect visibility 

during the first planning period. See 77 

FR 35287. See also 77 FR 3691, 3709 

(January 25, 2012) (proposing approval 

of Virginia’s regional haze SIP). As 

EPA’s review of the Virginia regional 

haze SIP explains, the Commonwealth 

relied on enforceable emissions 

reductions already in place to address 

the impacts of Virginia on out-of-state 

Class I areas. The question of whether 

or not CAIR satisfies the BART 

requirements has no bearing on whether 

these measures meet the requirements of 

section 110(a)(2)(D)(i)(II) with respect to 

visibility. 

Therefore, EPA disagrees with the 

commenter that EPA must disapprove 

the visibility provision in Virginia’s 

2010 NO2 infrastructure SIP because 

CAIR does remain in effect and is 

enforceable. EPA also notes that while 

the adequacy of the BART provisions in 

the Virginia regional haze SIP is 

irrelevant to the question of whether the 

plan meets the requirements of section 

110(a)(2)(D)(i)(II), CAIR was upheld as 

an alternative to BART in accordance 

with the requirements of section 169A 

of the CAA by the D.C. Circuit in Utility 

Air Regulatory Group v. EPA. 

Comment 2: The commenter states 

that EPA should disapprove the 

visibility prong of Virginia’s 2010 NO2

infrastructure revision because the 

commenter asserts that Virginia failed to 

submit its five year progress review for 

regional haze by the required date. The 

commenter references a July 17, 2008 

SIP submittal from Virginia as the basis 

for determining when the five year 

progress report for regional haze was 

due. 

Response 2: EPA disagrees with the 

comment that Virginia failed to submit 

its five year progress report by the 

required date. Virginia’s five year 

progress report for 40 CFR 51.308(g) is 

not due until October 4, 2015. The 

Commonwealth of Virginia submitted 

several regional haze SIP submissions 

between 2008 and 2010. On July 17, 

2008, Virginia submitted to EPA the first 

of many SIP revisions addressing 

portions of the regional haze 

requirements. This first submission 

contained a permit and a BART 

determination for one source in 

Virginia. Virginia submitted three 

additional SIP revisions containing 

permits and BART determinations 

addressing specific sources on March 6, 

2009, January 14, 2010, and November 


sroberts on DSK5SPTVN1PROD with RULES
Federal Register / Vol. 79, No. 52 / Tuesday, March 18, 2014 / Rules and Regulations 15015 

19, 2010. A May 6, 2011 SIP revision 

also included a permit for a source for 

purposes of reasonable progress. 

Although the July 2008, March 2009, 

January 2010, November 2010, and May 

2011 SIP revision submittals from 

Virginia included BART and reasonable 

progress determinations for specific 

sources in Virginia, the Commonwealth 

did not submit a comprehensive 

regional haze plan until October 4, 

2010. This plan included the reasonable 

progress goals for Virginia’s Class I 

areas, calculations of baseline and 

natural visibility conditions, a long-term 

strategy for regional haze, additional 

BART determinations, and a monitoring 

strategy. 

Given this, EPA considers the 

appropriate regional haze SIP 

submission which Virginia should be 

evaluating in the progress report 

required by 40 CFR 51.308(g) is the 

October 4, 2010 submission. 

Consequently, Virginia’s five year 

progress report for 40 CFR 51.308(g) is 

not due until October 4, 2015, five years 

from the first regional haze SIP 

submittal which comprehensively 

addressed 40 CFR 51.308(d) and (e). 

Finally, EPA notes that on November 

8, 2013 Virginia submitted its five year 

progress report for 40 CFR 51.308(g) 

significantly in advance of its October 4, 

2015 due date. On February 11, 2014, 

EPA signed a separate rulemaking 

action proposing approval of that report. 

EPA’s review of emissions data from 

Virginia’s five year progress report 

shows that emissions of the key 

visibility-impairing pollutant for the 

southeast, sulfur dioxide (SO2), 

continued to drop from 428,070 tons per 

year (tpy) in 2002 to 268,877 tpy in 2007 

to 115,436 tpy in 2011. The emissions 

inventories also show similar 

substantial declines in other pollutants, 

particularly NOX, between 2007 and 

2011. 

In summary, EPA believes that it 

appropriately proposed approval of 

Virginia’s infrastructure SIP revision for 

the 2010 NO2 NAAQS for the structural 

visibility protection requirements in 

110(a)(2)(D)(i)(II) because that progress 

report was not yet due on the date of 

EPA’s publication of the proposal. 

Therefore, EPA finds Virginia has met 

the basic structural visibility protection 

requirements in 110(a)(2)(D)(i)(II). 

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 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 § 10.1–1198, 

therefore, documents or other 

information needed for civil or criminal 

enforcement under one of these 

programs could not be privileged 

because such documents and 

information are essential to pursuing 

enforcement in a manner required by 

Federal law to maintain program 

delegation, authorization or approval.’’ 

Virginia’s Immunity law, Va. Code 

Sec. 10.1–1199, provides that ‘‘[t]o the 

extent consistent with requirements 

imposed by Federal law,’’ any person 

making a voluntary disclosure of 

information to a state agency regarding 

a violation of an environmental statute, 

regulation, permit, or administrative 

order is granted immunity from 

administrative or civil penalty. The 

Attorney General’s January 12, 1998 

opinion states that the quoted language 

renders this statute inapplicable to 

enforcement of any Federally authorized 

programs, since ‘‘no immunity could be 

afforded from administrative, civil, or 

criminal penalties because granting 

such immunity would not be consistent 

with Federal law, which is one of the 

criteria for immunity.’’ 

Therefore, EPA has determined that 

Virginia’s Privilege and Immunity 

statutes will not preclude the 

Commonwealth from enforcing its 

program consistent with the Federal 

requirements. In any event, because 

EPA has also determined that a state 

audit privilege and immunity law can 

affect only state enforcement and cannot 

have any impact on Federal 

enforcement authorities, EPA may at 

any time invoke its authority under the 

CAA, including, for example, sections 

113, 167, 205, 211 or 213, to enforce the 

requirements or prohibitions of the state 

plan, independently of any state 

enforcement effort. In addition, citizen 

enforcement under section 304 of the 

CAA is likewise unaffected by this, or 

any, state audit privilege or immunity 

law. 

IV. Final Action 

EPA is approving the following 

infrastructure elements or portions 

thereof of Virginia’s SIP revision: 

Sections 110(a)(2)(A), (B), (C) (for 

enforcement and regulation of minor 

sources and minor modifications), 

(D)(i)(II) (for visibility protection), 

(D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J) 

(relating to consultation, public 

notification, and visibility protection 

requirements), (K), (L), and (M), or 

portions thereof as a revision to the 

Virginia SIP. EPA is taking separate 

rulemaking action on the portions of 

section 110(a)(2)(C), (D)(i)(II), and (J) as 

they relate to Virginia’s PSD program 

and section 110(a)(2)(E)(ii) as it relates 

to section 128 (State Boards). This 

rulemaking action does not include 

section 110(a)(2)(I) of the CAA which 

pertains to the nonattainment 

requirements of part D, Title I of the 

CAA, since this element is not required 

to be submitted by the three year 

submission deadline of section 

110(a)(1), and will be addressed in a 

separate process. This rulemaking 

action also does not include proposed 

action on section 110(a)(2)(D)(i)(I), 

because this element, or portions 

thereof, is not required to be submitted 

by a state until the EPA has quantified 

a state’s obligations and Virginia’s SIP 

submittal did not include this element. 

See EME Homer City Generation, LP v. 

EPA, 696 F.3d 7 (D.C. Cir. 2012), cert. 

granted, 2013 U.S. LEXIS 4801 (2013). 


sroberts on DSK5SPTVN1PROD with RULES
15016 Federal Register / Vol. 79, No. 52 / Tuesday, March 18, 2014 / Rules and Regulations 

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 May 19, 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. This action, 

addressing certain infrastructure 

requirements of section 110(a)(2) of the 

CAA for the 2010 NO2 NAAQS for the 

Commonwealth of Virginia, 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, Reporting 

and recordkeeping requirements. 

Dated: March 3, 2014. 

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. Section 52.2420 is amended in 

paragraph (e), by adding an entry for 

‘‘Section 110(a)(2) Infrastructure 

Requirements for the 2010 Nitrogen 

Dioxide NAAQS’’ at the end of the table 

to read as follows: 

§ 52.2420 Identification of plan. 

* * * * * 

(e) * * * 

Name of non-regulatory SIP 

revision 

Applicable 

geographic 

area 

State submittal 

date EPA approval date Additional explanation 

*******

Section 110(a)(2) Infrastructure 

Requirements for the 2010 Nitrogen Dioxide NAAQS.

Statewide .......... 5/30/13 3/18/14 [Insert Federal Register 

page number where the document begins].

This action addresses the following CAA elements, or portions thereof: 110(a)(2) (A), (B), 

(C), (D)(i)(II), (D)(ii), (E)(i), 

(E)(iii), (F), (G), (H), (J), (K), (L), 

and (M) with the exception of 

PSD elements. 

[FR Doc. 2014–05808 Filed 3–17–14; 8:45 am] 

BILLING CODE 6560–50–P 


sroberts on DSK5SPTVN1PROD with RULES