Federal Register / Vol. 79, No. 85 / Friday, May 2, 2014 / Rules and Regulations 25019 

1On June 13, 2012, EPA finalized a limited 

approval of Virginia’s October 4, 2010 regional haze 

SIP to address the first implementation period for 

regional haze (77 FR 35287). In a separate action, 

published on June 7, 2012 (77 FR 33642), EPA 

finalized a limited disapproval of the Virginia 

regional haze SIP because of the Commonwealth’s 

reliance on the Clean Air Interstate Rule (CAIR) to 

meet certain regional haze requirements, which 

EPA replaced in August 2011 with the Cross-State 

Air Pollution Rule (CSAPR) (76 FR 48208, August 

8, 2011). In the aforementioned June 7, 2012 action, 

EPA finalized a Federal Implementation Plan (FIP) 

for Virginia to replace the Commonwealth’s reliance 

on CAIR with reliance on CSAPR. Following these 

EPA actions, the DC Circuit issued a decision in 

EME Homer City Generation, L.P. v. EPA, 696 F.3d 

7 (D.C. Cir. 2012), cert. granted 133 U.S. 2857 

(2013) vacating CSAPR and keeping CAIR in place 

pending the promulgation of a valid replacement 

rule. EPA believes that the EME Homer City 

decision impacts the reasoning that formed the 

basis for EPA’s limited disapproval of Virginia’s 

regional haze SIP based on Virginia’s reliance upon 

CAIR and expects to propose an appropriate action 

regarding the limited approval and limited 

disapproval of the regional haze SIP upon final 

resolution of EME Homer City. 

[FR Doc. 2014–10114 Filed 5–1–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2014–0006; FRL–9910–34– 

Region 3] 

Approval and Promulgation of 

Implementation Plans; Virginia; 

Regional Haze Five-Year Progress 

Report State Implementation Plan 

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 through the Virginia 

Department of Environmental Quality 

(DEQ). Virginia’s SIP revision addresses 

requirements of the Clean Air Act (CAA) 

and EPA’s rules that require states to 

submit periodic reports describing 

progress towards reasonable progress 

goals (RPGs) established for regional 

haze and a determination of the 

adequacy of the state’s existing 

implementation plan addressing 

regional haze (regional haze SIP). EPA is 

approving Virginia’s SIP revision on the 

basis that it addresses the progress 

report and adequacy determination 

requirements for the first 

implementation period for regional 

haze. 

DATES: This final rule is effective on 

June 2, 2014. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R03–OAR–2014–0006. 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. 

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 Virginia’s submittal are 

available at the Virginia Department of 

Environmental Quality, 629 East Main 

Street, Richmond, Virginia 23219. 

FOR FURTHER INFORMATION CONTACT: 

Irene Shandruk, (215) 814–2166, or by 

email at shandruk.irene@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On February 25, 2014 (79 FR 10451), 

EPA published a notice of proposed 

rulemaking (NPR) for the 

Commonwealth of Virginia. In the NPR, 

EPA proposed approval of Virginia’s 

progress report SIP, a report on progress 

made in the first implementation period 

towards RPGs for Class I areas in the 

Commonwealth and Class I areas 

outside the Commonwealth that are 

affected by emissions from Virginia’s 

sources. This progress report SIP and 

accompanying cover letter also included 

a determination that Virginia’s existing 

regional haze SIP requires no 

substantive revision to achieve the 

established regional haze visibility 

improvement and emissions reduction 

goals for 2018. 

States are required to submit a 

progress report in the form of a SIP 

revision every five years that evaluates 

progress towards the RPGs for each 

mandatory Class I Federal area within 

the state and in each mandatory Class I 

Federal area outside the state which 

may be affected by emissions from 

within the state. See 40 CFR 51.308(g). 

In addition, the provisions under 40 

CFR 51.308(h) require states to submit, 

at the same time as the 40 CFR 51.308(g) 

progress report, a determination of the 

adequacy of the state’s existing regional 

haze SIP. The first progress report SIP 

is due five years after submittal of the 

initial regional haze SIP. On October 4, 

2010, Virginia DEQ submitted the 

Commonwealth’s first regional haze SIP 

in accordance with the requirements of 

40 CFR 51.308.1 The progress report SIP 

revision was submitted by Virginia on 

November 8, 2013 and EPA finds that it 

satisfies the requirements of 40 CFR 

51.308(g) and 308(h). 

II. Summary of SIP Revision 

On November 8, 2013, Virginia 

submitted a SIP revision to address 

progress made towards RPGs of Class I 

areas in the Commonwealth and Class I 

areas outside the Commonwealth that 

are affected by emissions from Virginia’s 

sources. This progress report SIP also 

includes a determination of the 

adequacy of the Commonwealth’s 

existing regional haze SIP. 

Virginia has two Class I areas within 

its borders: James River Face Wilderness 

Area (James River) and Shenandoah 

National Park (Shenandoah). Virginia 

mentions in the progress report SIP that 

Virginia sources were also identified, 

through an area of influence modeling 

analysis based on back trajectories, as 

potentially impacting nine Class I areas 

in five neighboring states: Dolly Sods 

Wilderness Area in West Virginia; Great 

Smoky Mountains National Park and 

Joyce Kilmer—Slickrock Wilderness 

Area in North Carolina and Tennessee; 

Linville Gorge, Shining Rock and 

Swanquarter Wilderness Areas in North 

Carolina; Cohutta and Wolf Island 

Wilderness Areas in Georgia; and Cape 

Romaine Wilderness Area in South 

Carolina. 

The provisions in 40 CFR 51.308(g) 

require a progress report SIP to address 

seven elements. EPA finds that 

Virginia’s progress report SIP addressed 

each element under 40 CFR 51.308(g). 

The seven elements and EPA’s 

conclusion are briefly summarized 

below; however, the detailed rationale 

for EPA’s action is explained in the NPR 

and will not be restated here. No 

adverse public comments were received 

on the NPR. 

The provisions in 40 CFR 51.308(g) 

require progress report SIPs to include 

a description of the status of measures 

in the approved regional haze SIP; a 

summary of emissions reductions 

achieved; an assessment of visibility 

conditions for each Class I area in the 

state; an analysis of changes in 

emissions from sources and activities 

within the state; an assessment of any 

significant changes in anthropogenic 

emissions within or outside the state 

that have limited or impeded progress 

in Class I areas impacted by the state’s 

sources; an assessment of the 

sufficiency of the approved regional 


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25020 Federal Register / Vol. 79, No. 85 / Friday, May 2, 2014 / Rules and Regulations 

haze SIP; and a review of the state’s 

visibility monitoring strategy. As 

explained in detail in the NPR, EPA 

finds that Virginia’s progress report SIP 

addressed each element and has 

therefore satisfied the requirements 

under 40 CFR 51.308(g). 

In addition, pursuant to 40 CFR 

51.308(h), states are required to submit, 

at the same time as the progress report 

SIP, a determination of the adequacy of 

their existing regional haze SIP and to 

take one of four possible actions based 

on information in the progress report. 

One possible action is submission of a 

negative declaration to EPA that no 

further substantive revision to the state’s 

existing regional haze SIP is needed. In 

its progress report SIP, Virginia 

submitted a negative declaration that it 

had determined that the existing 

regional haze SIP requires no further 

substantive revision to achieve the RPGs 

for Class I areas affected by Virginia’s 

sources. As explained in detail in the 

NPR, EPA concludes Virginia has 

adequately addressed 40 CFR 51.308(h) 

because the visibility data trends at the 

Class I areas impacted by the 

Commonwealth’s sources and the 

emissions trends of the 

Commonwealth’s largest emitters of 

visibility-impairing pollutants both 

indicate that the Commonwealth’s RPGs 

for 2018 will be met or exceeded. 

Therefore, EPA concludes Virginia’s 

progress report SIP meets the 

requirements of 40 CFR 52.308(h). 

III. Final Action 

EPA is approving Virginia’s Regional 

Haze five-year progress report SIP 

revision, submitted November 8, 2013, 

as meeting the applicable regional haze 

requirements as set forth in 40 CFR 

51.308(g) and 51.308(h). 

IV. 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 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. 

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 


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Federal Register / Vol. 79, No. 85 / Friday, May 2, 2014 / Rules and Regulations 25021 

• 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 July 1, 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 to approve Virginia’s 

regional haze five-year progress report 

SIP revision 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, Intergovernmental relations, 

Nitrogen oxides, Particulate matter, 

Reporting and recordkeeping 

requirements, Sulfur dioxide, Volatile 

organic compounds. 

Dated: April 21, 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. In § 52.2420, the table in paragraph 

(e) is amended by adding an entry for 

Regional Haze Five-Year Progress 

Report 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 

*******

Regional Haze Five-Year 

Progress Report.

Statewide ............................... 11/8/13 5/2/14 [Insert page number 

where the document begins].

[FR Doc. 2014–10110 Filed 5–1–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2012–0761; FRL–9909–86– 

Region 8] 

Approval and Promulgation of State 

Implementation Plan Revisions; 

Revisions to the Air Pollution Control 

Rules; North Dakota 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving State 

Implementation Plan (SIP) revisions 

submitted by the Governor of North 

Dakota on April 14, 2011. The revisions 

affect North Dakota’s air pollution 

control rules regarding general 

provisions, ambient air quality 

standards (sulfur dioxide (SO2), nitrogen 

dioxide (NOX), and lead), and 

permitting. EPA acted separately on 

other provisions in the April 14, 2011 

submittal related to North Dakota’s 

regulation of greenhouse gases (GHGs) 

under its Prevention of Significant 

Deterioration (PSD) program. This 

action is being taken under section 110 

of the Clean Air Act (the Act or CAA). 

DATES: This final rule is effective June 

2, 2014. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R08–OAR–2012–0761. All 

documents in the docket are listed in 

the http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

(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 through 

http://www.regulations.gov or in hard 

copy at the Air Program, Environmental 

Protection Agency (EPA), Region 8, 

1595 Wynkoop St., Denver, Colorado 

80202–1129. EPA requests that if at all 

possible, you contact the individual 

listed in the FOR FURTHER INFORMATION

CONTACT section to view the hard copy 

of the docket. You may view the hard 

copy of the docket Monday through 

Friday, 8:00 a.m. to 4:00 p.m., excluding 

federal holidays. 

FOR FURTHER INFORMATION CONTACT: Gail 

Fallon, Air Program, U.S. 

Environmental Protection Agency, 

Region 8, Mailcode 8P–AR, 1595 

Wynkoop Street, Denver, Colorado 

80202–1129, (303) 312–6281, 

Fallon.Gail@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 


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