2018-17448. Air Plan Approval; Virginia; Regional Haze Plan and Visibility for the 2010 Sulfur Dioxide and 2012 Fine Particulate Matter 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 (the Commonwealth or Virginia) on July 16, 2015. This SIP submittal changes Virginia's reliance on the Clean Air Interstate Rule (CAIR) to reliance on the Cross-State Air Pollution Rule (CSAPR) for certain elements of Virginia's regional haze program. EPA is approving the visibility portion of Virginia's infrastructure SIP submittals for the 2010 sulfur dioxide (SO₂) and 2012 fine particulate matter (PM_2.5) national ambient air quality standards (NAAQS) and approving element (J) for visibility of Virginia's infrastructure SIP submittal for the 2010 SO₂ NAAQS. EPA is also converting the Agency's prior limited approval/limited disapproval of Virginia's regional haze program to a full approval and withdrawing the federal implementation plan (FIP) provisions addressing our prior limited disapproval. This action is being taken under the Clean Air Act (CAA).

DATES:

This final rule is effective on September 20, 2018.

ADDRESSES:

EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2017-0601. All documents in the docket are listed on the http://www.regulations.gov website. 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 through http://www.regulations.gov,, or please contact the person identified in the For Further Information Contact section for additional availability information.

FOR FURTHER INFORMATION CONTACT:

Ellen Schmitt, [phone], or by email at [e-mail].

SUPPLEMENTARY INFORMATION:

On July 16, 2015, the Virginia Department of Environmental Quality (VA DEQ) submitted a revision to its SIP to update the Commonwealth's regional haze plan and to meet the visibility requirements in section 110(a)(2)(D) of the CAA for the 2010 SO₂ and 2012 PM_2.5 NAAQS.

I. Background

On March 1, 2018 (83 FR 8814), EPA published a notice of proposed rulemaking (NPR) addressing SIP revisions from the Commonwealth. In the NPR, EPA proposed to take the following actions: (1) To approve Virginia's July 16, 2015 SIP submission that changed Virginia's reliance on CAIR to reliance on CSAPR for certain elements of Virginia's regional haze program; (2) to convert EPA's limited approval/limited disapproval ^[1] of Virginia's regional haze program to a full approval; and (3) to approve portions of Virginia's June 18, 2014 infrastructure SIP submission for the 2010 SO₂ NAAQS and its July 16, 2015 infrastructure SIP submission for the 2012 PM_2.5 NAAQS addressing the visibility provisions of section 110(a)(2)(D)(i) of the CAA. EPA subsequently published a second, supplemental NPR proposing to remove the FIP for the Commonwealth that addressed the issues associated with the Agency's prior limited disapproval. 83 FR 20002 (March 1, 2018). The supplemental NPR also proposed approval of the provisions in Virginia's June 18, 2014 infrastructure SIP submittal for the 2010 SO₂ NAAQS addressing the requirements of section 110(a)(2)(J) of the CAA.

II. Summary of SIP Revision and EPA Analysis

In order to correct the deficiencies identified in the June 7, 2012 limited disapproval of Virginia's regional haze program by EPA, the Commonwealth submitted a SIP revision to the Agency on July 16, 2015 to replace reliance on CAIR with reliance on CSAPR in its regional haze SIP.^[2] Specifically, the July 16, 2015 SIP submittal changes the Virginia regional haze program to specify that the Commonwealth is relying on CSAPR in its regional haze SIP to meet the best available retrofit technology (BART) for certain electric generating units (EGUs) and reasonable progress requirements to support visibility improvement progress goals for Virginia's Class I areas, Shenandoah National Park and the James River Wilderness Area.

As did EPA's partial regional haze FIP for Virginia, the Commonwealth's July 16, 2015 regional haze SIP revision relies on CSAPR to address the deficiencies identified in EPA's June 2012 limited disapproval of Virginia's regional haze SIP. As discussed in the NPR in greater detail, EPA finds that this revision satisfies Virginia's BART requirements for its EGUs and reasonable progress requirements and therefore allows for a fully approvable regional haze program. With today's final approval, the Commonwealth has a SIP in place to address all of its regional haze requirements. EPA finds that Virginia's reliance in its SIP upon CSAPR for certain BART and reasonable progress requirements is in accordance with the CAA and regional haze rule requirements (including 40 CFR 51.308(e)(2)), as EPA has recently affirmed that CSAPR remains an appropriate alternative to source-specific BART controls for EGUs participating in CSAPR.^[3] Because the deficiencies in Virginia's regional haze SIP associated with the Commonwealth's reliance on CAIR that were identified in EPA's prior limited disapproval are addressed through the Commonwealth's revised SIP, the Agency is now fully approving Virginia's regional haze SIP. Additionally, EPA finds that the prong 4 portions of Virginia's infrastructure SIP submittals for the 2010 SO₂ NAAQS and the 2012 PM_2.5 NAAQS are fully approvable as Virginia now has a fully approved regional haze SIP.^[4]

The specific details of Virginia's July 16, 2015 SIP revision and the rationale for EPA's approval are discussed in the NPR ^[5] and supplemental NPR ^[6] and will not be restated here. Thirteen public comments were submitted to the docket identified in EPA's proposed actions; however, none of the comments were specific to the rulemaking and thus are not addressed here.

III. Final Action

EPA is taking the following actions: (1) Approving Virginia's July 16, 2015 SIP submission that changed Virginia's reliance on CAIR to reliance on CSAPR for certain elements of Virginia's regional haze program; (2) converting EPA's limited approval/limited disapproval of Virginia's regional haze program to a full approval; (3) withdrawing the FIP provisions that address the limited disapproval of Virginia's regional haze program; (4) approving the portions of Virginia's June 18, 2014 infrastructure SIP submission for the 2010 SO₂ NAAQS and its July 16, 2015 infrastructure SIP submission for the 2012 PM_2.5 NAAQS addressing the visibility provisions of CAA section 110(a)(2)(D)(i); (5) and approving the portion of Virginia's June 18, 2014 infrastructure SIP for the 2010 SO₂ NAAQS addressing CAA section 110(a)(2)(J).

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 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. Executive Orders 12866 and 13563: Regulatory Planning and Review

This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).

B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs

This action is not an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.

C. Paperwork Reduction Act

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

D. Regulatory Flexibility Act (RFA)

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities because small entities are not subject to the requirements of this rule. 83 FR 8814 (March 1, 2018) and 83 FR 20002 (May 7, 2018).

E. Unfunded Mandates Reform Act (UMRA)

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to state, local, or tribal governments, or to the private sector, will result from this action.

F. Executive Order 13132: Federalism

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

This action does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments. There are no Indian reservation lands in Virginia. Thus, Executive Order 13175 does not apply to this rule.

H. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.

J. National Technology Transfer and Advancement Act

This rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.

K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations, and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994).

L. Determination Under Section 307(d)

Pursuant to CAA section 307(d)(1)(B), this action is subject to the requirements of CAA section 307(d), as it revises a FIP under CAA section 110(c).

M. Congressional Review Act (CRA)

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).

N. 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 October 22, 2018. 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 may not be challenged later in proceedings to enforce its requirements. See CAA section 307(b)(2).

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Particulate matter
• Regional haze
• Reporting and recordkeeping requirements
• Sulfur oxides
• Visibility

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

Dated: August 8, 2018.

Andrew R. Wheeler,

Acting Administrator.

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 by revising the entries for “Regional Haze Plan”, “Section 110(a)(2) Infrastructure Requirements for the 2010 Sulfur Dioxide NAAQS”, and “Section 110(a)(2) Infrastructure Requirements for the 2012 Particulate Matter NAAQS” in the table in paragraph (e)(1) to read as follows:

§ 52.2420

Identification of plan.

* * * * *

(e) * * *

(1) * * *

Name of non-regulatory SIP revision	Applicable geographic area	State submittal date	EPA approval date	Additional explanation
*         *         *         *         *         *         *
Regional Haze Plan	Statewide	7/16/15	8/21/18, [Insert Federal Register citation]	Full Approval. See §§ 52.2452(g).
*         *         *         *         *         *         *
Section 110(a)(2) Infrastructure Requirements for the 2010 Sulfur Dioxide NAAQS	Statewide	6/18/14	3/4/15, 80 FR 11557	Docket #2014-0522. This action addresses the following CAA elements, or portions thereof: 110(a)(2) (A), (B), (C), (D)(i)(II) (PSD), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J) (consultation, notification, and PSD), (K), (L), and (M).
		12/22/14	4/2/15, 80 FR 17695	Docket #2015-0040. Addresses CAA element 110(a)(2)(E)(ii).
		7/16/15	8/21/18, [Insert Federal Register citation]	Docket #2017-0601. This action addresses the following CAA elements: 110(a)(2)(D)(I)(II) for visibility and 110(a)(2)(J) for visibility.
*         *         *         *         *         *         *
Section 110(a)(2) Infrastructure Requirements for the 2012 Particulate Matter NAAQS	Statewide	7/16/15	6/16/16, 81 FR 39210	Docket #2015-0838. This action addresses the following CAA elements, or portions thereof: 110(a)(2)(A), (B), (C), (D)(i)(II) (PSD), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M).
		7/16/15	8/21/18, [Insert Federal Register citation]	Docket #2017-0601. This action addresses the following CAA element: 110(a)(2)(D)(I)(II) for visibility.
*         *         *         *         *         *         *

* * * * *

3. Section 52.2452 is amended by removing and reserving paragraphs (d), (e), and (f) and by adding paragraph (g) to read as follows:

§ 52.2452

Visibility protection.

* * * * *

(g) EPA converts its limited approval/limited disapproval of Virginia's regional haze program to a full approval. This SIP revision changes Virginia's reliance from the Clean Air Interstate Rule to the Cross-State Air Pollution Rule to meet the regional haze SIP best available retrofit technology requirements for certain sources and to meet reasonable progress requirements.

Footnotes

1.  77 FR 33642 (June 7, 2012).

2.  Virginia was included in the CSAPR federal trading programs on August 8, 2011. 76 FR 48208.

3.  See 82 FR 45481 (September 29, 2017) (affirming the validity to EPA's determination that participation in CSAPR satisfies the criteria for an alternative to BART following changes to the program.)

4.  Virginia's 2010 SO₂ NAAQS and 2012 PM_2.5 NAAQS infrastructure SIP submissions relied on the Commonwealth having a fully approved regional haze program to satisfy its prong 4 requirements. However, at the time of both infrastructure SIP submittals, Virginia did not have a fully approved regional haze program as the Agency had issued a limited disapproval of the Commonwealth's regional haze plan on June 7, 2012, due to its reliance on CAIR.

5.  83 FR 8814 (March 1, 2018).

6.  83 FR 20002 (May 7, 2018).