[Federal Register Volume 80, Number 136 (Thursday, July 16, 2015)]
[Rules and Regulations]
[Pages 42044-42046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-17386]



[[Page 42044]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2015-0360; FRL-9930-63-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Revision to the Definition of Volatile Organic Compounds

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 Commonwealth of Virginia's 
State Implementation Plan (SIP). The revision adds two compounds to the 
list of substances not considered to be volatile organic compounds 
(VOC). EPA is approving these revisions in accordance with the 
requirements of the Clean Air Act (CAA).

DATES: This rule is effective on September 14, 2015 without further 
notice, unless EPA receives adverse written comment by August 17, 2015. 
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-2015-0360 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-2015-0360, 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 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-
2015-0360. 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: Irene Shandruk, (215) 814-2166, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Tropospheric ozone, commonly known as smog, is formed when VOCs and 
nitrogen oxides react in the atmosphere in the presence of sunlight. 
Because of the harmful health effects of ozone, EPA and state 
governments limit the amount of VOCs that can be released into the 
atmosphere. VOCs have different levels of reactivity, that is, some 
VOCs react slowly or form less ozone, and therefore, changes in their 
emissions have limited effects on local or regional ozone pollution 
episodes. It has been EPA's policy that VOCs with a negligible level of 
reactivity should be excluded from the regulatory definition of VOC 
contained at 40 CFR 51.100(s) so as to focus control efforts on 
compounds that do significantly increase ozone concentrations. This is 
accomplished by adding the substance to a list of compounds not 
considered to be VOCs, and thus, excluded from the definition of VOC. 
EPA believes that exempting such compounds creates an incentive for 
industry to use negligibly reactive compounds in place of more highly 
reactive compounds that are regulated as VOCs. On August 28, 2013 (78 
FR 53029) and October 22, 2013 (78 FR 62451), EPA revised the 
definition of VOC contained in 40 CFR 51.100 to exclude two substances 
from the definition of VOC. The compounds excluded from the definition 
of VOC are trans 1-chloro-3,3,3-trifluoroprop-1-ene (also known as 
Solstice\TM\ 1233zd(E)) and 2,3,3,3-tetrafluoropropene (also known as 
HFO-1234yf).

II. Summary of SIP Revision

    On May 7, 2015, the Commonwealth of Virginia submitted a formal 
revision to its SIP which consists of adding two additional compounds 
to the list of substances that are not considered VOCs found at 9VAC5-
10-20. These compounds are trans 1-chloro-3,3,3-trifluoroprop-1-ene 
(also known as Solstice\TM\ 1233zd(E)) and 2,3,3,3-tetrafluoropropene 
(also known as HFO-1234yf). The May 7, 2015 SIP revision will allow the 
Virginia SIP to mirror the Federal definition of VOC. EPA believes that 
by excluding these negligibly reactive compounds from the definition of 
VOC an incentive is created for industry to use negligibly reactive 
compounds in place of more highly reactive compounds; therefore, the 
air quality in Virginia will not be negatively affected by the approval 
of these SIP revisions particularly as EPA has found these compounds 
negligibly reactive for ozone formation.

III. Final Action

    EPA is approving the SIP revision to the definition of VOC 
submitted by Virginia on May 7, 2015. 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 September 14, 2015 without further

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notice unless EPA receives adverse comment by August 17, 2015. 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.

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. Incorporation by Reference

    In this rulemaking action, EPA is finalizing regulatory text that 
includes incorporation by reference. In accordance with requirements of 
1 CFR 51.5, EPA is finalizing the incorporation by reference of the 
definition of VOCs as described in section II of this rulemaking 
action. EPA has made, and will continue to make, these documents 
generally available electronically through www.regulations.gov and/or 
in hard copy at the appropriate EPA office (see the ADDRESSES section 
of this preamble for more information).

VI. 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

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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 September 14, 2015. 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, revising the definition of VOCs, 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, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: July 7, 2015.
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

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2. In Sec.  52.2420, the table in paragraph (c) is amended by adding a 
new entry for ``Section 5-10-20'' immediately after the existing 
entries for ``Section 5-10-20'' to read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

                                 EPA-Approved Virginia Regulations and Statutes
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                                                                                                 Explanation
         State citation              Title/subject     State effective   EPA approval date       [former SIP
                                                             date                                 citation]
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                                9 VAC 5, Chapter 10 General Definitions [Part I]
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                                                  * * * * * * *
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5-10-20.........................  Terms Defined......         3/12/15   7/16/15 [Insert      Definition of VOC
                                                                         Federal Register     is revised by
                                                                         citation].           adding two
                                                                                              chemicals (trans 1-
                                                                                              chloro-3,3,3-
                                                                                              trifluoroprop-1-
                                                                                              ene and 2,3,3,3-
                                                                                              tetrafluoropropene
                                                                                              ) to the list of
                                                                                              substances not
                                                                                              considered to be
                                                                                              VOCs.
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[FR Doc. 2015-17386 Filed 7-15-15; 8:45 am]
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