Approval and Promulgation of Air Quality Implementation Plans; Virginia; Removal of the Regulation for the National Low Emission Vehicle Program

W.C. Early
Environmental Protection Agency
November 14, 2013

[Federal Register Volume 78, Number 220 (Thursday, November 14, 2013)]
[Rules and Regulations]
[Pages 68365-68367]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-27029]



[[Page 68365]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2013-0407; FRL-9902-53-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Removal of the Regulation for the National Low Emission 
Vehicle Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve a revision to the 
Virginia State Implementation Plan (SIP). The revision removes 
Virginia's repealed regulation for the National Low Emission Vehicle 
(NLEV) program from the Virginia SIP. Virginia repealed its regulation 
in December 2011, because the NLEV program was superseded by more 
stringent Federal Tier 2 passenger car and light-duty truck standards, 
which were promulgated by EPA on February 10, 2000. The Federal Tier 2 
vehicle standards, which were implemented on a phased-in basis between 
model years 2004 and 2006, marked the expiration of the NLEV program, 
per the framework established by the NLEV program at its inception. 
Therefore, EPA is approving this revision to remove Virginia's repealed 
NLEV regulation from the Virginia SIP, in accordance with the 
requirements of the Clean Air Act (CAA).

DATES: This rule is effective on January 13, 2014 without further 
notice, unless EPA receives adverse written comment by December 16, 
2013. If EPA receives such comments, it will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2013-0407 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-2013-0407, Cristina Fernandez, Associate 
Director, Office of Air Program Planning, Mailcode 3AP30, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed 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-
2013-0407. 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: Brian Rehn, (215) 814-2176, or by 
email at rehn.brian@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    The Federal NLEV program was a voluntary, nationwide program to 
control emissions from new passenger cars and light-duty trucks, for 
the purpose of reducing the formation of ground level ozone and other 
air pollution emitting by new vehicles after the program took effect. 
Given the need for additional reductions of ozone precursor emissions 
in the Ozone Transport Region (OTR), the Ozone Transport Commission 
(OTC) states sought additional reductions from more stringent new 
vehicle standards than the Federal Tier 1 vehicle program that was in 
place at that time. The only option for more stringent vehicle emission 
standards afforded to the OTC states by the CAA was adoption of Low 
Emission Vehicle standards developed by California (CA LEV) to meet its 
own unique air quality goals. The OTC pressed for adoption of CA LEV 
throughout the OTR, in place of Federal Tier 1 vehicle emission 
standards, which commenced with the 1994 model year and were then in 
effect in most of the OTC member states (except New York and 
Massachusetts, which had already opted for CA LEV standards). Faced 
with complying with these differing vehicle emission standards across a 
``patchwork'' of states across the United States, the auto 
manufacturers coordinated with OTC, environmentalists, fuel providers, 
and EPA, among others, to develop the NLEV program.
    On June 6, 1997 (62 FR 31192) and on January 7, 1998 (63 FR 926), 
EPA promulgated rules outlining the framework for the NLEV program. 
These NLEV rules allowed auto manufacturers to commit to meet tailpipe 
standards for passenger cars and light trucks that were more stringent 
than Federal Tier 1 standards that were then mandatory under authority 
of Title II of the CAA. The NLEV regulatory framework was voluntary in 
that the program took effect only after the Northeast states and auto 
manufacturers agreed to participate in the NLEV framework and be bound 
by the standards. On March 9, 1998 (63 FR 11374), EPA published a 
finding that the NLEV program was in effect, after the Governors of 
nine OTR states (Connecticut, Delaware, Maryland, New Hampshire, New 
Jersey, Pennsylvania, Rhode Island, Virginia, and the District of 
Columbia) and twenty-three U.S. market auto manufacturers agreed to 
participate. The NLEV framework became effective after these initial 
commitments, followed by incorporation of the states' participation

[[Page 68366]]

commitments being incorporated into each participating state's SIP.
    Virginia's adopted program rules covering its participation in the 
NLEV program (Regulation 9 VAC 5 Chapter 200) on January 7, 1999. 
Virginia then submitted its adopted regulation as a SIP revision to EPA 
on May 27, 1999. EPA approved Virginia's revision to the SIP through a 
final rule published on December 28, 1999 (64 FR 72564).
    In accordance with EPA's NLEV regulatory framework rule, Virginia's 
regulation established that the Commonwealth's participation in the 
NLEV program would extend until model year 2006. However, if EPA 
adopted Federal Tier 2 standards that were more stringent than NLEV by 
December 15, 2000, Virginia's rule limited participation in the NLEV 
program until model year 2004.
    On February 10, 2000, EPA published a final rule in the Federal 
Register (65 FR 6698) adopting Federal Tier 2 standards that were more 
stringent than the Federal NLEV program, commencing with model year 
2004. Subsequently, Virginia repealed its NLEV regulation (9 VAC5-200), 
in its entirety, on December 2, 2011.

II. Summary of SIP Revision

    On August 1, 2013, the Commonwealth of Virginia submitted a formal 
revision to its State Implementation Plan (SIP). The SIP revision 
serves to remove from the SIP Virginia's NLEV regulation, which was 
adopted by the Commonwealth in 1999. By model year 2006, the Federal 
NLEV program had been fully superseded by Federal Tier 2 passenger car 
and light-truck standards. Since the Federal Tier 2 program was 
designed by EPA to supersede the NLEV program and was by design more 
stringent with respect to control of regulated vehicle emissions than 
the NLEV program it replaced, there is no need for a state repealing 
its NLEV regulations to determine whether the removal of these 
provisions from the SIP will interfere with any applicable requirement 
concerning attainment and maintenance of any applicable National 
Ambient Air Quality Standard (NAAQS) under section 110(l) of the Clean 
Air Act.
    Virginia's NLEV regulation expired with the implementation of the 
Federal Tier 2 vehicle standards program, and in December 2011 Virginia 
repealed Regulation 9 VAC 5 Chapter 200, effective June 7, 2012.

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 Sec.  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 
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. Final Action

    EPA is approving Virginia's SIP revision to remove the now expired 
NLEV program from the SIP to reflect Virginia's repeal of its NLEV 
program regulation at the state level. EPA is publishing this rule 
without prior proposal because EPA views this as a noncontroversial 
amendment and anticipates no adverse comment. However, in the 
``Proposed Rules'' section of today's Federal Register, EPA is 
publishing a separate document that will serve as the proposal to 
approve the SIP revision if adverse comments are filed. This rule will 
be effective on January 13, 2014 without further notice unless EPA 
receives adverse comment by December 16, 2013. If EPA receives adverse 
comment, EPA will publish a timely withdrawal in the Federal Register 
informing the public that the rule will not take effect. EPA will 
address all public comments in a subsequent final rule based on the 
proposed rule. EPA will not institute a second comment period on this 
action. Any parties interested in commenting must do so at this time.

[[Page 68367]]

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
     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 January 13, 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. Parties with objections to this direct final rule are 
encouraged to file a comment in response to the parallel notice of 
proposed rulemaking for this action published in the proposed rules 
section of today's Federal Register, rather than file an immediate 
petition for judicial review of this direct final rule, so that EPA can 
withdraw this direct final rule and address the comment in the proposed 
rulemaking action. This rulemaking action to remove Virginia's NLEV 
program from the Virginia SIP 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, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, and Volatile organic compounds.

    Dated: September 30, 2013.
W.C. Early,
Acting, Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart VV--Virginia

0
2. In Sec.  52.2420, the table in paragraph (c) is amended by removing 
the entries for 9 VAC 5 Chapter 200 ``National Low Emission Vehicle 
Program'' in its entirety.

[FR Doc. 2013-27029 Filed 11-13-13; 8:45 am]
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