### 39651 Federal Register / Vol. 78, No. 127 / Tuesday, July 2, 2013 / Proposed Rules

review and rationale for approving West Virginia’s submittal may be found in the Technical Support Document (TSD) for this proposed rulemaking action, which
is available online at www.regulations.gov, Docket number

EPA–R03–OAR–2013–0299.

III. Proposed Action

EPA is proposing to approve the following elements or portions thereof of West Virginia’s February 17, 2012 SIP revision: (A), (B), (C), (D)(i)(II), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J), (K), (L), and (M). West Virginia’s SIP revision provides the basic program elements specified in CAA section 110(a)(2) necessary to implement, maintain, and enforce the 2008 ozone NAAQS. This action does not include any proposed action on section 110(a)(2)(I) of the CAA which pertains to the nonattainment requirements of part D, Title I of the CAA, because this element is not required to be submitted by the 3-year
submission deadline of CAA section 110(a)(1), and will be addressed in a separate process. This action also does not include proposed action on section 110(a)(2)(D)(i)(I) of the CAA, because this element, or portions thereof, is not required to be submitted by a state to meet CAA section 110(a)(2)(D)(i)(I) until the EPA has quantified a state’s obligations under that section. See EME Homer City Generation, LP v. EPA, 696 F.3d 7 (DC Cir. 2012), reh’g denied 2013 U.S. App. LEXIS 1623 (Jan. 24, 2013).

Additionally, EPA has taken separate action on the portions of CAA section 110(a)(2) infrastructure elements for the 2008 ozone NAAQS as they relate to West Virginia’s PSD program, as required by part C of Title I of the CAA. This includes portions of the following
infrastructure elements: CAA section 110(a)(2)(C), (D)(i)(II), and (J). See (77 FR 63736, October 17, 2012) and (78 FR 27062, May 9, 2013). EPA will take later separate action on CAA section 110(a)(2)(E)(ii) for the 2008 ozone NAAQS as it relates to CAA section 128,
‘‘State Boards.’’

EPA is soliciting public comments on
the issues discussed in this document.
These comments will be considered before taking final action.

IV. Statutory and Executive Order
Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA’s role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely 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 the infrastructure requirements of section 110(a)(2) of the CAA for the 2008 ozone NAAQS, 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, Ozone, Volatile organic compounds, Nitrogen dioxide, Record keeping.

Authority: 42 U.S.C. 7401 et seq. Dated: June 13, 2013. W.C. Early, Acting Regional Administrator, Region III.

[FR Doc. 2013–15893 Filed 7–1–13; 8:45 am]

**BILLING CODE 6560–50–P**

**ENVIRONMENTAL PROTECTION**
**AGENCY**

**40 CFR Part 52**

**[EPA–R03–OAR–2013–0211; FRL–9829–8]**

**Approval and Promulgation of Air Quality Implementation Plans; Virginia;**  **Section 110(a)(2) Infrastructure Requirements for the 2008 Ozone**  **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 ozone national ambient air quality standards (NAAQS). This submission is commonly referred to as
an infrastructure SIP. This action does not include any proposed action on element (I) which pertains to the nonattainment requirements of part D, Title I of the CAA, because this element is not required to be submitted by the 3-year submission deadline of 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 August 1, 2013.

**ADDRESSES :**  Submit your comments, identified by Docket ID Number EPA– R03–OAR–2013–0211 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–2013–0211, 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–


### 39652 Federal Register / Vol. 78, No. 127 / Tuesday, July 2, 2013 / Proposed Rules

0211. 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 July 23, 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 ozone NAAQS.

I. Background

On March 27, 2008, EPA promulgated a revised NAAQS for ozone based on 8- hour average concentrations. EPA
revised the level of the 8-hour ozone NAAQS to 0.075 parts per million (ppm). 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. In the case of the 2008 8-hour ozone NAAQS, states typically have met the basic program elements required in section 110(a)(2) through earlier SIP
submissions in connection with the 1997 8-hour ozone NAAQS.

States were required to submit such SIPs for the 2008 8-hour ozone NAAQS
to EPA no later than March 2011.

II. Summary of SIP Revision

On July 23, 2012, VADEQ provided a submittal to satisfy the requirements of section 110(a)(2) of the CAA for the 2008 ozone 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)(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). This action does not include any proposed action on section 110(a)(2)(I) of the CAA which pertains to the nonattainment requirements of part D, Title I of the CAA, because this element is not required to be submitted by the 3-year submission deadline of CAA section 110(a)(1), and will be addressed in a separate process. This action also does not include proposed action on section 110(a)(2)(D)(i)(I) of the CAA, because this element, or portions thereof, is not required to be submitted by a state to meet CAA section 110(a)(2)(D)(i)(I) until the EPA has quantified a state’s obligations under
that section. 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). A detailed summary of EPA’s review and rationale for approving Virginia’s submittal may be found in the Technical Support Document (TSD) for this proposed rulemaking action, which is available
online at www.regulations.gov, Docket
number EPA–R03–OAR–2013–0211.

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


### 39653 Federal Register / Vol. 78, No. 127 / Tuesday, July 2, 2013 / Proposed Rules

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)(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 ozone NAAQS. This SIP revision was submitted on July 23, 2012. This action does not include any proposed action on section 110(a)(2)(I) of the CAA which pertains to the nonattainment requirements of part D, Title I of the CAA, 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. This action also does not include proposed action on section 110(a)(2)(D)(i)(I) of the CAA, because this element, or portions thereof, is not required to be submitted by a state to meet CAA section 110(a)(2)(D)(i)(I) until the EPA has quantified a state’s obligations under that section. 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). 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 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 ozone 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, Ozone, Volatile organic compounds, Nitrogen dioxide.

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

Dated: June 13, 2013.
W. C. Early,
Acting Regional Administrator, Region III.

[FR Doc. 2013–15890 Filed 7–1–13; 8:45 am]

**BILLING CODE 6560–50–P**