[Federal Register Volume 80, Number 157 (Friday, August 14, 2015)]
[Rules and Regulations]
[Pages 48730-48733]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-20023]



40 CFR Part 52

[EPA-R03-OAR-2015-0454; FRL-9932-35-Region 3]

Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Movement of the Northern Virginia Area From Virginia's 
Nonattainment Area List to its Maintenance Area List

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.


SUMMARY: The Environmental Protection Agency (EPA) is taking direct 
final action to approve revisions to the Virginia State Implementation 
Plan (SIP). The revisions move the localities (Counties of Arlington, 
Fairfax, Loudon, and Prince William; Cities of Alexandria, Fairfax, 
Falls Church, Manassas, and Manassas Park) of Northern Virginia from 
Virginia's list of nonattainment areas to its list of maintenance areas 
for fine particulate matter (PM2.5). EPA is approving these 
revisions in accordance with the requirements of the Clean Air Act 

DATES: This rule is effective on October 13, 2015 without further 
notice, unless EPA receives adverse written comment by September 14, 
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-2015-0454 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-2015-0454, Cristina Fernandez, Associate 
Director, Office of Air Program Planning, Air Protection Division, Mail 
code 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-
2015-0454. 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: Maria A. Pino, (215) 814-2181, or by 
email at [email protected].


I. Background

    Particle pollution, or particulate matter, is a mixture of solid 
particles and liquid droplets found in the air. Particle pollution 
includes ``inhalable coarse particles,'' with diameters larger than 2.5 
micrometers and smaller than 10 micrometers and ``fine particles,'' 
with diameters that are 2.5 micrometers and smaller. Due to their small 
size, these particles often contribute to adverse health effects. EPA 
is required to set National Ambient Air Quality Standards (NAAQS) under 
the authority of the CAA, for the purpose of controlling particle 
pollution. The first NAAQS for PM2.5 were established on 
July 16, 1997 (62 FR 38652). EPA promulgated an annual standard at a 
level of 15 micrograms per cubic meter ([mu]g/m\3\), based on a three-
year average of annual mean PM2.5 concentrations (the 1997 
annual PM2.5 standard). In the same rulemaking action, EPA 
promulgated a 24-hour standard of 65 [mu]g/m\3\, based on a three-year 
average of the 98th percentile of 24-hour concentrations.
    EPA published air quality area designations for the 1997 
PM2.5 standards on January 5, 2005. In its rulemaking 
action, EPA designated the Washington, DC-MD-VA Area as nonattainment 
for the 1997 annual PM2.5 standard. The Washington, DC-MD-VA 
area (Washington Area) is composed of the District of Columbia; 
Arlington, Fairfax, Loudoun, and Prince William Counties and the cities 
of Alexandria, Fairfax, Falls Church, Manassas, and Manassas Park in 
Virginia (the Northern Virginia area); and Charles, Frederick, 

[[Page 48731]]

and Prince George's Counties in Maryland.
    The District of Columbia Department of the Environment (DDOE), the 
Maryland Department of the Environment (MDE), and the Virginia 
Department of Environmental Quality (VADEQ), (collectively, the 
States), collaborated to develop redesignation requests and maintenance 
plans for the Washington Area for the 1997 annual PM2.5 
NAAQS. EPA received the 1997 annual PM2.5 redesignation 
requests and maintenance plans for the Washington Area from DDOE on 
June 3, 2013, from MDE on July 10, 2013, and from VADEQ on June 3, 
2013. The Washington Area maintenance plan included motor vehicle 
emissions budgets (MVEBs) for PM2.5 and nitrogen oxides 
(NOX) for the Washington Area for the 1997 annual 
PM2.5 standard, which EPA approved for transportation 
conformity purposes. The emissions inventories included in the 
Washington Area maintenance plans were subsequently supplemented by the 
States to provide for emissions estimates of volatile organic compounds 
(VOC) and ammonia. The supplemental inventories were submitted to EPA 
on July 22, 2013 by DDOE, on July 26, 2013 by MDE, and on July 17, 2013 
    On October 6, 2014 (79 FR 60081), the EPA approved the States' 
redesignation requests and maintenance plans for the Washington Area, 
including Northern Virginia, for the 1997 annual PM2.5 
standard. Therefore, the designation of the Northern Virginia area, as 
part of the Washington Area, was changed from nonattainment to 
attainment. Subsequently, Virginia changed its lists of areas in 
nonattainment and maintenance within its regulations, located in 9 VAC5 
Chapter 20, to reflect EPA's redesignation of the Washington Area.

II. Summary of SIP Revision

    On June 1, 2015, the Commonwealth of Virginia submitted a formal 
revision to its SIP. The SIP revision consists of a regulatory change 
that moves the Northern Virginia area (Counties of Arlington, Fairfax, 
Loudoun, and Prince William; Cities of Alexandria, Fairfax, Falls 
Church, Manassas, and Manassas Park), which was part of the Washington 
Area, from the list of nonattainment areas found in regulation 9 VAC 5-
20-204 to the list of maintenance areas found in regulation 9 VAC 5-20-

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 
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.

IV. Final Action

    EPA is approving the proposed regulatory amendment which moves the 
localities in Northern Virginia (Counties of Arlington, Fairfax, 
Loudoun, and Prince William; Cities of Alexandria, Fairfax, Falls 
Church, Manassas, and Manassas Park) from the list of nonattainment 
areas found in regulation 9 VAC 5-20-204 to the list of maintenance 
areas found in regulation 9 VAC 5-20-203. EPA finds this revision to 
the SIP is in accordance with CAA requirements, including sections 107 
and 110 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 13, 2015 without further notice 
unless EPA receives adverse comment by September 14, 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

[[Page 48732]]

second comment period on this action. Any parties interested in 
commenting must do so at this time. Please note that if EPA receives 
adverse comment on an amendment, paragraph, or section of this rule and 
if that provision may be severed from the remainder of the rule, EPA 
may adopt as final those provisions of the rule that are not the 
subject of an adverse comment.

V. Incorporation by Reference

    In this rulemaking action, the EPA is finalizing regulatory text 
that includes incorporation by reference. In accordance with 
requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by 
reference of changes to 9 VAC5 Chapter 20, specifically 9VAC5-20-203 
and 9VAC5-20-204, described in the amendments to 40 CFR part 52 set 
forth below. The 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 revision applies to Northern Virginia and does not 
apply in Indian country, 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. 

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 13, 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, which moves the localities in Northern 
Virginia within the Washington Area (Counties of Arlington, Fairfax, 
Loudoun, and Prince William; Cities of Alexandria, Fairfax, Falls 
Church, Manassas, and Manassas Park) from the list of nonattainment 
areas found in regulation 9 VAC 5-20-204 to the list of maintenance 
areas found in regulation 9 VAC 5-20-203, 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, Particulate matter.

    Dated: August 4, 2015.
William C. Early,
Acting, Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:


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 Sec.  52.2420, the table in paragraph (c) is amended by revising 
the entries for Sections 5-20-203 and 5-20-204. The revised text reads 
as follows:

Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

[[Page 48733]]

                                 EPA-Approved Virginia Regulations and Statutes
         State citation              Title/Subject      effective    EPA Approval date   Explanation [former SIP
                                                           date                                 citation]
                                                  * * * * * * *
9 VAC 5, Chapter 20.............                                General Provisions
                                                  * * * * * * *
Part II.........................                               Air Quality Programs
                                                  * * * * * * *
5-20-203........................  Air Quality              3/11/15  8/14/15 [Insert      List of maintenance
                                   Maintenance.                      Federal Register     areas revised to
                                  Areas..............                Citation].           include Northern
                                                                                          Virginia localities
                                                                                          for fine particulate
                                                                                          matter (PM2.5).
5-20-204........................  Nonattainment Areas      3/11/15  8/14/15 [Insert      List of nonattainment
                                                                     Federal Register     areas revised to
                                                                     Citation].           exclude Northern
                                                                                          Virginia localities
                                                                                          for fine particulate
                                                                                          matter (PM2.5).
                                                  * * * * * * *

[FR Doc. 2015-20023 Filed 8-13-15; 8:45 am]