[Federal Register Volume 79, Number 154 (Monday, August 11, 2014)]
[Rules and Regulations]
[Pages 46711-46714]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-18620]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2014-0142; FRL-9914-49-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Revision to the Maintenance Plans for the Richmond 1990 1-
Hour and Richmond-Petersburg 1997 8-Hour Ozone Maintenance Areas To 
Remove the Stage II Vapor Recovery Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking direct 
final action to approve a revision to the Virginia State Implementation 
Plan (SIP). The revision removes the Stage II vapor recovery program 
(Stage II) from the maintenance plans for the Richmond 1990 1-hour and 
Richmond-Petersburg 1997 8-hour ozone National Ambient Air Quality 
Standard (NAAQS) Maintenance Areas (Richmond Area or Area). The 
revision also includes an analysis that addresses the impact of the 
removal of Stage II from subject gasoline dispensing facilities (GDFs) 
in the Richmond Area. The analysis submitted by the Commonwealth of 
Virginia (Commonwealth) satisfies the requirements of section 110(l) of 
the Clean Air Act (CAA). EPA is approving this revision in accordance 
with the requirements of the CAA.

DATES: This rule is effective on October 10, 2014 without further 
notice, unless EPA receives adverse written comment by September 10, 
2014. 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-2014-0142 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. Email: [email protected].
    C. Mail: EPA-R03-OAR-2014-0142, 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-
2012-0142. 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: Asrah Khadr, (215) 814-2071, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On November 12, 2013, the Commonwealth of Virginia submitted a 
formal revision to its SIP through the Virginia Department of 
Environmental Quality (VADEQ). The SIP revision consists of the removal 
of Stage II from the maintenance plans for the Richmond Area. The SIP 
revision also consists of an analysis demonstrating that the removal of 
Stage II from the Richmond Area maintenance plans will not cause any 
increase in emissions.

[[Page 46712]]

This analysis satisfies the requirements of section 110(l) of the CAA 
because it demonstrates that the removal of Stage II from the Richmond 
Area will not worsen air quality nor prevent maintenance of the NAAQS 
by the Area.
    Stage II is a means of capturing gasoline vapors displaced during 
transfer of gasoline from the gasoline dispensing unit to the motor 
vehicle fuel tank during vehicle refueling at a (GDF). Stage II 
involves use of special refueling nozzles and coaxial hoses for vapor 
collection at each gasoline pump at a subject GDF. Gasoline vapors 
belong to a class of pollutants known as volatile organic compounds 
(VOC). These compounds along with nitrogen oxides (NOX) are 
precursors to the formation of ozone. Stage II gasoline vapor recovery 
systems have been a required emission control measure in areas 
classified as serious, severe, and extreme for the ozone NAAQS.
    With the amendment of the CAA in 1990, Stage II controls were 
required for moderate ozone areas, under CAA section 182(b)(3). 
However, under section 202(a)(6) of the CAA, 42 U.S.C. 7521(a)(6), the 
requirements of section 182(b)(3) no longer apply in moderate ozone 
nonattainment areas after EPA promulgated standards for onboard 
refueling vapor recovery (ORVR) as part of new motor vehicles' emission 
control systems. ORVR is a mechanism employed by vehicles to re-use the 
vapors in their gas tanks instead of allowing them to escape. Over 
time, non-ORVR vehicles continue to be replaced by ORVR-equipped 
vehicles. On May 16, 2012, EPA determined that ORVR technology is in 
widespread use throughout the U.S. vehicle fleet and waived the 
requirement for states to implement Stage II vapor recovery at GDFs in 
nonattainment areas classified as Serious or above for the ozone NAAQS 
(77 FR 28772). EPA determined that emission reductions from ORVR-
equipped vehicles are essentially equal to and will soon surpass the 
emission reductions achieved by Stage II alone (77 FR 28772). EPA 
determined that a state previously required to implement a Stage II 
vapor recovery program may take appropriate action to remove the 
measure from its SIP (77 FR 28772).
    The Richmond Area was designated as a moderate nonattainment area 
under the 1990 1-hour ozone NAAQS as well as the 1997 8-hour ozone 
NAAQS. On July 26, 1996, VADEQ submitted a redesignation request and 
maintenance plan because the air quality data was showing attainment of 
the 1990 1-hour ozone NAAQS. On November 17, 1997 (62 FR 61237), EPA 
approved the redesignation request and maintenance plan. On September 
26, 2006, VADEQ submitted a redesignation request and maintenance plan 
because the air quality data was showing attainment of the 1997 8-hour 
ozone NAAQS. On June 1, 2007 (72 FR 30485), EPA approved the 
redesignation request and maintenance plan. Even though the 1990 1-hour 
ozone NAAQS was revoked on June 15, 2005, EPA's subsequent 
implementation rules for the 1997 8-hour ozone NAAQS retained the Stage 
II-related requirements under CAA section 182(b)(3), but only as they 
applied to the Area for the Area's classification for the 1-hour ozone 
NAAQS designation for the 8-hour ozone NAAQS. See 40 CFR 51.900(f). 
Therefore, the maintenance plans for both NAAQS contain provisions for 
the implementation of Stage II.

II. Summary of SIP Revision

    The analysis submitted by VADEQ addresses the effects of removing 
Stage II from the Richmond Area. In accordance with section 110(l) of 
the CAA, the analysis demonstrates that the removal of Stage II from 
the Richmond Area will not interfere with the attainment or maintenance 
of the NAAQS. In this demonstration, VADEQ followed guidance provided 
by EPA in the following guidance document: Guidance on Removing Stage 
II Gasoline Vapor Control Programs from State Implementation Plans and 
Assessing Comparable Measures. The guidance document provided a method 
in which states could provide certain calculations showing that 
increased emissions from non-ORVR compatible Stage II would eventually 
negate benefits from the implementation of Stage II. Also, the guidance 
gave the states flexibility to provide additional or alternate analyses 
to EPA for consideration.
    As recommended by the guidance, VADEQ calculated the area-wide VOC 
inventory emissions benefits from Stage II. These calculations 
demonstrate when the emissions increases from non-ORVR compatible Stage 
II would overtake emissions benefits from Stage II. The calculation 
results for the area-wide Stage II emissions reductions from year 2002 
to 2020 are provided in Table 1. The results provided in Table 1 
demonstrate that in 2016 there would no longer be a VOC emissions 
benefit from Stage II, or that the emissions benefit is negative. 
Virginia plans on removing the Stage II requirement on January 1, 2017. 
VADEQ also provided additional data and analyses demonstrating that 
Stage II has very little impact on VOC emissions in the Richmond Area 
and that modeling indicates that the formation of ozone in the Richmond 
Area is much more dependent on NOX emissions than VOC 
emissions. A detailed summary of EPA's review and rationale for 
proposing to approve this SIP revision may be found in the Technical 
Support Document (TSD) prepared in support of this rulemaking action 
and is available on line at http://www.regulations.gov, Docket number 
EPA-R03-OAR-2014-0142.

  Table 1--Stage II Emissions Reductions in the Area-Wide VOC Inventory
------------------------------------------------------------------------
                                                          Emissions
                        Year                          reductions  (tons
                                                         per day VOC)
------------------------------------------------------------------------
2002...............................................                 2.17
2005...............................................                 1.51
2008...............................................                 0.87
2009...............................................                 0.71
2010...............................................                 0.55
2011...............................................                  0.4
2012...............................................                 0.28
2013...............................................                 0.16
2014...............................................                 0.07
2015...............................................                 0.00
2016...............................................                -0.06
2017...............................................                -0.10
2018...............................................                -0.14
2020...............................................                -0.19
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III. Final Action

    EPA is approving the revision submitted by the Commonwealth of 
Virginia to remove Stage II from the maintenance plans for the Richmond 
Area. EPA is approving this revision because it was demonstrated that 
the removal of the Stage II requirement on January 1, 2017 will not 
cause any emissions increases that could interfere with the attainment 
or maintenance of the NAAQS, or otherwise interfere with any applicable 
requirement of the CAA. 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 October 10, 
2014 without further notice unless EPA receives adverse comment by 
September 10, 2014. 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.

[[Page 46713]]

Any parties interested in commenting must do so at this time.

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 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 
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
     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).

[[Page 46714]]

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 October 10, 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 action approving the removal of Stage II from the Richmond 
Area maintenance plans 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, Volatile organic compounds.

    Dated: July 11, 2014.
William 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 (e) is amended by revising 
the entries for ``Ozone Maintenance Plan, emissions inventory & 
contingency measures, Richmond Area'', and ``8-Hour Ozone Maintenance 
Plan and 2002 Base Year Emissions Inventory'' to read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (e) EPA-approved non-regulatory and quasi-regulatory material

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                                       Applicable geographic
 Name of non-regulatory SIP revision            area             State submittal date               EPA approval date             Additional explanation
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                                                                      * * * * * * *
Ozone Maintenance Plan, emissions     Richmond Area..........  7/26/96................  11/17/97, 62 FR 61237...................  52.2465(c)(119)
 inventory & contingency measures.                             11/12/13...............  8/11/2014 [Insert Federal Register        Removal of Stage II
                                                                                         citation].                                vapor recovery
                                                                                                                                   program. See section
                                                                                                                                   52.2428.
 
                                                                      * * * * * * *
8-Hour Ozone Maintenance Plan and     Richmond-Petersburg VA   9/18/06, 9/20/06, 9/25/  6/1/07, 72 FR 30485.....................  The SIP effective date
 2002 Base Year Emissions Inventory.   Area.                    06, 11/17/06, 2/13/07.  ........................................   is 6/18/07.
                                                               11/12/13...............  8/11/2014 [Insert Federal Register        Removal of Stage II
                                                                                         citation].                                vapor recovery
                                                                                                                                   program. See section
                                                                                                                                   52.2428.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. Section 52.2428 is amended by adding paragraph (i) to read as 
follows:


Sec.  52.2428  Control Strategy: Carbon monoxide and ozone.

* * * * *
    (i) As of October 10, 2014, EPA approves the removal of the Stage 
II vapor recovery program from the maintenance plans for the Richmond 
1990 1-Hour Ozone Maintenance Area and the Richmond-Petersburg 1997 8-
Hour Ozone Maintenance Area.

[FR Doc. 2014-18620 Filed 8-8-14; 8:45 am]
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