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

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– 


emcdonald on DSK67QTVN1PROD with PROPOSALS
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 


emcdonald on DSK67QTVN1PROD with PROPOSALS
Federal Register / Vol. 78, No. 127 / Tuesday, July 2, 2013 / Proposed Rules 39653 

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 


emcdonald on DSK67QTVN1PROD with PROPOSALS