34970 Federal Register / Vol. 78, No. 112 / Tuesday, June 11, 2013 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2012–0451; FRL–9822–4] 

Approval and Promulgation of Air 

Quality Implementation Plans; Virginia; 

Section 110(a)(2) Infrastructure 

Requirements for the 2008 Lead 

National Ambient Air Quality 

Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

a State Implementation Plan (SIP) 

revision submitted by the 

Commonwealth of Virginia addressing 

the basic program elements specified in 

110(a)(2) of the Clean Air Act (CAA) 

necessary to implement, maintain, and 

enforce the 2008 lead national ambient 

air quality standards (NAAQS). This 

submission is commonly referred to as 

an infrastructure SIP. This action does 

not include the nonattainment 

requirements of part D, Title I (referred 

to as element I), since this element is 

not required to be submitted by the 3- 

year submission deadline of CAA 

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

in a separate action. This action is being 

taken under the CAA. 

DATES: Written comments must be 

received on or before July 11, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2012–0451 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–2012–0451, 

Cristina Fernandez, Associate Director, 

Office of Air Program Planning, Air 

Protection Division, 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–2012– 

0451. 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: 

Ellen Schmitt, (215) 814–5787, or by 

email at schmitt.ellen@epa.gov. 

SUPPLEMENTARY INFORMATION: On March 

9, 2012, the Virginia Department of 

Environmental Quality (VADEQ) 

submitted a revision to its SIP to satisfy 

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

the CAA for the 2008 lead NAAQS. 

I. Background 

On October 15, 2008, EPA 

substantially strengthened the primary 

and secondary lead NAAQS (hereafter 

the ‘‘2008 lead NAAQS’’), revising the 

level of the primary (health-based) 

standard from 1.5 micrograms per cubic 

meter (mg/m3) to 0.15 mg/m3, measured 

as total suspended particles (TSP) and 

not to be exceeded with an averaging 

time of a rolling 3-month period. EPA 

also revised the secondary (welfarebased) standard to be identical to the 

primary standard, as well as the 

associated ambient air monitoring 

requirements. See 40 CFR 50.16. 

Section 110(a) of the CAA requires 

states to submit SIPs to provide for the 

implementation, maintenance, and 

enforcement of a new or revised 

NAAQS within three years following 

the promulgation of such NAAQS or 

within such shorter period as EPA may 

prescribe. The contents of that 

submission may vary depending upon 

the facts and circumstances. In 

particular, the data and analytical tools 

available at the time the state develops 

and submits the SIP for a new or revised 

NAAQS affects the content of the 

submission. The contents of such SIP 

submissions may also vary depending 

upon what provisions the state’s 

existing SIP already contains. 

Pursuant to section 110(a)(1) of the 

CAA, states are required to submit SIPs 

meeting the applicable requirements of 

section 110(a)(2) within three years after 

promulgation of a new or revised 

NAAQS or within such shorter period 

as EPA may prescribe. Section 110(a)(1) 

provides the procedural and timing 

requirements for SIPs and section 

110(a)(2) requires states to address basic 

SIP elements such as requirements for 

monitoring, basic program requirements 

and legal authority that are designed to 

assure attainment and maintenance of 

the NAAQS. More specifically, section 

110(a)(2) lists specific elements that 

states must meet for ‘‘infrastructure’’ SIP 

requirements related to a newly 

established or revised NAAQS. 

For the 2008 lead NAAQS, states 

typically have met many of the basic 

program elements required in CAA 

section 110(a)(2) through earlier SIP 

submissions in connection with 

previous lead NAAQS. Nevertheless, 

pursuant to CAA section 110(a)(1), 

states will have to review and revise, as 

appropriate, their existing lead NAAQS 

SIPs to ensure that the SIPs are adequate 

to address the 2008 lead NAAQS. To 

assist states in meeting this statutory 

requirement, EPA issued a guidance on 

October 14, 2011, entitled, ‘‘Guidance 

on Infrastructure State Implementation 

Plan (SIP) Elements Required Under 

sections 110(a)(1) and 110(a)(2) for the 

2008 Lead (Pb) National Ambient Air 

Quality Standards (NAAQS)’’ (hereafter 

the ‘‘2011 Lead Infrastructure 

Guidance’’), which lists the basic 


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Federal Register / Vol. 78, No. 112 / Tuesday, June 11, 2013 / Proposed Rules 34971 

elements that states should include in 

their SIPs for the 2008 lead NAAQS. 

II. Summary of SIP Revision 

On March 9, 2012, VADEQ provided 

a submittal to satisfy the requirements 

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

2008 lead NAAQS. This submittal 

addressed the following infrastructure 

elements, which EPA is proposing to 

approve: CAA section 110(a)(2)(A), (B), 

(C) (for enforcement and regulation of 

minor sources), (D)(i)(I), (D)(i)(II) (for 

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

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

or portions thereof. EPA is taking 

separate action on the portions of (C), 

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

Virginia’s PSD program and (E)(ii) as it 

relates to CAA section 128 (State 

Boards). Virginia did not submit 

element (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 3- 

year submission deadline of CAA 

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

in a separate process. 

In accordance with a decision from 

the U.S. Court of Appeals for the D.C. 

Circuit, the EPA at this time is not 

treating the 110(a)(2)(D)(i)(I) SIP 

submission from the Commonwealth of 

Virginia as a required SIP submission. 

See EME Homer City Generation, LP v. 

EPA, 696 F.3d 7 (D.C. Cir. 2012), reh’g 

denied 2013 U.S. App. LEXIS 1623 (Jan. 

24, 2013). However, even if the 

submission is not considered to be 

‘‘required,’’ the EPA must act on the 

110(a)(2)(D)(i)(I) SIP submission from 

Virginia because section 110(k)(2) of the 

CAA requires the EPA to act on all SIP 

submissions. Unless the EME Homer 

City decision is reversed or otherwise 

modified by the Supreme Court, states 

are not required to submit 

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

quantified their obligations under that 

section. In this notice, EPA is proposing 

to act on the Commonwealth of 

Virginia’s 110(a)(2)(D)(i)(I) submission. 

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 PSD, 

NSR, or Title V 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. Proposed Action 

EPA is proposing to approve the 

following CAA section 110(a)(2) 

elements of Virginia’s SIP revision: (A), 

(B), (C) (for enforcement and regulation 

of minor sources), (D)(i)(I), (D)(i)(II) (for 

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

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

or portions thereof. Virginia’s SIP 

revision provides the basic program 

elements specified in CAA section 

110(a)(2) necessary to implement, 

maintain, and enforce the 2008 lead 

NAAQS. This SIP revision was 

submitted on March 9, 2012. This 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 3- 

year submission deadline of CAA 

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

in a separate process. Additionally, EPA 

is taking separate action on the portions 

of CAA section 110(a)(2) infrastructure 

elements for the 2008 lead NAAQS as 

they relate to Virginia’s PSD program, as 

required by part C of Title I of the CAA. 

This includes portions of the following 

infrastructure elements of CAA section 

110(a)(2): (C), (D)(i)(II), and (J). EPA is 

soliciting public comments on the 

issues discussed in this document. 

These comments will be considered 

before taking final action. 

V. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

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

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 


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34972 Federal Register / Vol. 78, No. 112 / Tuesday, June 11, 2013 / Proposed Rules 

merely proposes to approve state law as 

meeting Federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

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

• does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (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 proposed rule, which 

satisfies certain infrastructure 

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

CAA for the 2008 lead NAAQS for the 

Commonwealth of Virginia, 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. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Lead. 

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

Dated: May 28, 2013. 

W.C. Early, 

Acting Regional Administrator, Region III. 

[FR Doc. 2013–13726 Filed 6–10–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2013–0289; FRL–9822–2] 

Approval and Promulgation of Air 

Quality Implementation Plans; Virginia; 

Revision to the Classification and 

Implementation of the 2008 Ozone 

National Ambient Air Quality 

Standards for the Northern Virginia 

Nonattainment Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA proposes to approve 

State Implementation Plan (SIP) 

revisions submitted by the 

Commonwealth of Virginia consisting of 

two amendments: an amendment to the 

list of nonattainment areas; and an 

amendment to the 1997 National 

Ambient Air Quality Standards 

(NAAQS) for ozone for the purposes of 

transportation conformity. In the Final 

Rules section of this Federal Register, 

EPA is approving the Commonwealth’s 

SIP submittal as a direct final rule 

without prior proposal because the 

Agency views this as a noncontroversial 

submittal and anticipates no adverse 

comments. A detailed rationale for the 

approval is set forth in the direct final 

rule. If no adverse comments are 

received in response to this action, no 

further activity is contemplated. If EPA 

receives adverse comments, the direct 

final rule will be withdrawn and all 

public comments received will be 

addressed in a subsequent final rule 

based on this proposed rule. EPA will 

not institute a second comment period. 

Any parties interested in commenting 

on this action should do so at this time. 

DATES: Comments must be received in 

writing by July 11, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2013–0289 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–2013–0289, 

Cristina Fernandez, Associate Director, 

Office of Air Program Planning, Air 

Protection Division, 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– 

0289. 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 


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