[Federal Register Volume 82, Number 89 (Wednesday, May 10, 2017)]
[Rules and Regulations]
[Pages 21697-21703]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-09387]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2016-0308; FRL-9961-86-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Removal of Stage II Gasoline Vapor Recovery Requirements for 
Gasoline Dispensing Facilities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a state 
implementation plan (SIP) revision submitted by the Commonwealth of 
Virginia. The revision includes regulatory amendments that allow 
gasoline dispensing facilities (GDFs) located in Northern Virginia, 
Fredericksburg, and Richmond that are currently required to install and 
operate vapor recovery equipment on gasoline dispensers (otherwise 
referred to as Stage II vapor recovery, or simply as Stage II) to 
decommission that equipment by January 2017. In prior rulemaking 
actions, EPA already approved Virginia's demonstrations that 
decommissioning Stage II is consistent with the Clean Air Act (CAA) and 
EPA guidance. The intended effect of this action is to approve 
Virginia's revised petroleum transfer and storage regulation to allow 
for decommissioning of Stage II equipment.

DATES: This final rule is effective on June 9, 2017.

[[Page 21698]]


ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2016-0308. All documents in the docket are listed on 
the http://www.regulations.gov Web site. 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: Brian Rehn, (215) 814-2176, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: On October 21, 2016, EPA published a notice 
of direct final rulemaking (81 FR 72724) and an accompanying proposed 
rulemaking (NPR) (81 FR 72757) for the Commonwealth of Virginia. 
Therein, EPA proposed approval of Virginia's revised 9 VAC 5, Chapter 
40, Rule 4-37 (Rule 4-37), Emission Standards for Petroleum Liquid 
Storage and Transfer Operations. These regulations had been amended to 
allow for the decommissioning of Stage II vapor recovery systems at 
GDFs in areas of the Commonwealth subject to Stage II under Virginia's 
SIP. The SIP revision was submitted by the Virginia Department of 
Environmental Quality (VA DEQ) on October 15, 2015.
    After receiving adverse comments during the public comment period 
on its proposed action, EPA withdrew the October 21, 2016 direct final 
rule in a notice published in the December 9, 2016 (81 FR 89007) 
Federal Register. As indicated in the October 21, 2016 direct final 
rule, EPA's separate proposed rule published at the same time serves as 
the proposed rulemaking.

I. Background

    Stage II vapor recovery is a means of capturing volatile organic 
compounds (VOCs) emitted as vapors displaced from a vehicle's gas tank 
during refueling operations, via vapor controls equipped on a gasoline 
pump at a GDF. Stage II vapor recovery uses special refueling nozzles 
and coaxial hoses on the gasoline dispenser to capture these vapors 
that might otherwise be emitted to the atmosphere during vehicle 
fueling. These gasoline vapors contain air emissions and serve as 
precursors to the formation of ground-level ozone--an ambient air 
pollutant regulated under the CAA. Under section 182(b)(3) of the CAA, 
areas classified as moderate or worse ozone nonattainment were required 
to adopt a Stage II vapor recovery program. Areas in the Ozone 
Transport Region (OTR) were required under section 184(a) and (b)(2) to 
adopt Stage II, or a comparable measure that could achieve similar 
emission reductions. Virginia currently has three SIP-approved Stage II 
programs in the Richmond, Fredericksburg, and the Virginia portion of 
the Washington, DC areas.
    The Richmond Stage II program was instituted as a result of the 
area being designated nonattainment under the 1-hour ozone National 
Ambient Air Quality Standards (NAAQS) by the CAA of 1990. The Richmond 
Stage II area (the Richmond Area) has since been redesignated as 
attainment for both the 1-hour ozone NAAQS (November 17, 1997; 62 FR 
61237) and for the 1997 8-hour ozone NAAQS (June 1, 2007; 72 FR 30485). 
However, Virginia's SIP-approved maintenance plans for the 1-hour and 
1997 8-hour ozone NAAQS relied upon emissions reductions from Stage II 
as a means to ensure continued maintenance of the ozone NAAQS. Although 
the 1-hour ozone NAAQS was revoked on June 15, 2005, EPA's 
implementation rule for the 1997 ozone NAAQS retained Stage II as a 
required measure to prevent backsliding under the NAAQS.
    The Virginia portion of the Washington, DC-MD-VA ozone 
nonattainment area (hereafter referred to as the Washington Area) was 
subject to Stage II not only because of its designation as 
nonattainment for the ozone NAAQS, but also because this area lies in a 
CAA-established OTR. The area was designated serious nonattainment 
under the 1-hour ozone NAAQS. The Washington Area was later designated 
moderate nonattainment under the 1997 8-hour ozone NAAQS, as was the 
neighboring Fredericksburg ozone nonattainment area (referred to herein 
as Fredericksburg Area). On November 13, 2002, EPA reclassified the 
Virginia portion of the Washington, DC-MD-VA area as severe 
nonattainment under the 1-hour ozone NAAQS. 67 FR 68805. Virginia 
subsequently submitted and EPA approved attainment plans for the 1-hour 
and 1997 8-hour NAAQS for the Washington Area, and EPA also approved a 
redesignation and maintenance plan for the Fredericksburg Area. 
Although the 1-hour ozone NAAQS was revoked effective June 2005, EPA's 
implementation rule for the 1997 ozone NAAQS retained Stage II-related 
requirements under CAA section 182(b)(3) for certain areas. Stage II 
continued to apply in the Washington, DC nonattainment area as an anti-
backsliding measure under the implementation rules for the 1997 and 
2008 ozone NAAQS. The 2008 ozone implementation rule similarly required 
that Stage II remain in the Fredericksburg Area as a maintenance 
measure pending EPA determination that onboard refueling vapor recovery 
(ORVR) was in widespread use and Virginia could demonstrate that Stage 
II was no longer a necessary component of its air quality plans.
    Virginia adopted Stage II regulations in the November 2, 1992 
edition of the Virginia Register of Regulations (Vol 9, Issue 3), 
effective January 1, 1993. Virginia submitted its Stage II regulation 
to EPA as a SIP revision on November 5, 1992. EPA approved Virginia's 
Stage II SIP revision on June 23, 1993 (59 FR 32353).
    ORVR is an emissions control system equipped on new, gasoline-
powered vehicles (beginning with model year 1998 vehicles) for the 
purpose of capturing refueling gasoline vapors before they escape the 
vehicle gas tank and to store them in an underhood canister for later 
engine combustion. Section 202(a)(6) of the CAA directed that Stage II 
requirements under section 182(b)(3) would no longer apply to moderate 
ozone nonattainment areas upon promulgation of standards for ORVR 
systems as part of the emission control system on newly manufactured 
vehicles. Section 202(a)(6) further provides that EPA may, by rule, 
waive the section 182(b)(3) Stage II requirements for ozone 
nonattainment areas designated serious or worse upon EPA's 
determination that ORVR technology is in ``widespread use.'' EPA issued 
its widespread use determination on May 16, 2012 (77 FR 28772), 
indicating that ORVR was in widespread use throughout the U.S. vehicle 
fleet, and that at that time ORVR vehicles were essentially equal to 
and would soon surpass the emissions reductions achieved by Stage II 
alone.
    Virginia has examined whether Stage II vapor recovery continues to 
be necessary for ozone control purposes, given the prevalence of ORVR-
equipped gasoline-powered vehicles and the redundancy between ORVR and 
Stage II systems in reducing gasoline tank displacement emissions 
associated with refueling. Additionally, Virginia analyzed the 
interference effect between certain Stage II systems and ORVR systems, 
which can result in VOC emissions being greater where ORVR and certain 
Stage II systems are simultaneously used than they would be

[[Page 21699]]

if only Stage II or ORVR were used. From these analyses, Virginia 
determined that Stage II vapor recovery is no longer necessary as a 
control measure to address ambient ozone in the Washington, 
Fredericksburg, and Richmond areas.
    On November 12, 2013 and March 18, 2014, Virginia submitted SIP 
revisions to EPA that evaluated the emissions impacts to each of the 
affected Virginia Stage II areas associated with removal of the 
program. Those SIP revisions amended the ozone maintenance plan for the 
Richmond Area and the attainment plan for the Washington Area to 
demonstrate that removal of the Stage II programs would not interfere 
with those areas' ability to attain and maintain any NAAQS. On May 26, 
2015 (80 FR 29959), EPA approved the Commonwealth's March 18, 2014 SIP 
revision amending the approved ozone attainment plan for the Virginia 
portion of Washington Area and the approved ozone maintenance plan for 
the Fredericksburg Area to remove the Stage II program. On August 11, 
2014, EPA approved Virginia's November 12, 2013 SIP revision amending 
the approved ozone maintenance plan SIP for the Richmond Area to remove 
the Stage II program. 79 FR 46711. None of these approvals were 
challenged in court by any objecting party.

II. Summary of SIP Revision and EPA Analysis

    On October 15, 2015, the Commonwealth of Virginia submitted a 
formal revision to remove the requirements for Stage II vapor recovery 
controls in Virginia ozone nonattainment areas from the approved 
Virginia SIP (Revision C14). This October 2015 SIP revision contains 
the amended Stage II vapor recovery regulatory provisions of Virginia 
Rule 4-37, entitled ``Emission Standards for Volatile Organic Compounds 
from Petroleum Liquid Storage and Transfer Operations.'' The October 
2015 SIP revision includes Virginia's regulatory amendments listed at 
9VAC5-20 and 9VAC5-40 that were adopted by Virginia in June of 2014, 
and published in the Virginia Register of Regulations on June 15, 2015 
which removed Stage II vapor recovery requirements from Virginia law 
governing petroleum liquid storage and transfer operations. The purpose 
of this SIP revision is to remove Stage II vapor recovery requirements 
from the Commonwealth's SIP. Under Virginia's amended Rule 4-37, 
gasoline stations in the Washington and Fredericksburg Areas were no 
longer required to employ Stage II systems as of January 2014, and 
Richmond Area stations were no longer required to employ Stage II vapor 
recovery systems as of January 2017. Facilities electing to 
decommission Stage II are now required under Rule 4-37 to meet 
established decommissioning procedures, and facilities electing to 
continue to operate Stage II are required to continue to operate 
properly and maintain their Stage II systems.
    As described in the Background section of this action, EPA already 
approved Virginia's SIP revisions submitted on November 12, 2013 and 
March 18, 2014 demonstrating that removal of Stage II as a control 
measure from the SIP will not interfere with the Washington, 
Fredericksburg, and Richmond Areas' ability to attain and maintain any 
applicable NAAQS. VA DEQ examined whether Stage II is necessary as an 
ozone control measure and determined this program is no longer 
beneficial to air quality in the Commonwealth, given the widespread use 
of ORVR equipment in new vehicles manufactured since 1998 and the 
inherent redundancies between Stage II vapor recovery equipment and 
vehicle-based ORVR systems, and in light of the incompatibilities 
between some Stage II vapor recovery equipment and vehicle-based, ORVR 
systems.
    EPA has evaluated the regulatory amendments adopted by Virginia to 
its Rule 4-37 to rescind Stage II vapor recovery requirements for new 
and existing stations, to adopt decommissioning procedures and 
requirements for GDFs electing to no longer operate existing Stage II 
systems, and to require the continued operation and maintenance of 
Stage II equipment for stations that elect to continue participation in 
the program. Virginia's regulatory changes meet EPA guidance and the 
related requirements of sections 182 and 202 of the CAA with respect to 
the applicability of Stage II requirements after EPA's issuance of its 
ORVR widespread use determination in 2012, as described in the 
Background section of this document. Virginia has properly analyzed the 
impact of removal of the Stage II program in adherence with EPA's 
``Guidance on Removing Stage II Gasoline Vapor Control Programs from 
State Implementation Plans and Assessing Comparable Measures,'' dated 
August 7, 2012 (EPA-457/B-12-001), including applicability of Stage II 
or comparable measures in the OTR, per section 184 of the CAA. As 
previously found by EPA, Virginia has demonstrated that removal of the 
Stage II requirement does not interfere with any affected area's 
ability to attain or maintain any NAAQS, or with any other applicable 
requirement of the CAA, under section 110(l) of the CAA.
    For further information on Virginia's analysis of the impacts of 
removal of the Stage II programs in the Washington and Fredericksburg 
Areas, please refer to EPA's May 26, 2015 approval of the SIP 
demonstration applicable to those areas. See 80 FR 29959. For further 
information with respect to Virginia's analysis of the removal of Stage 
II in the Richmond Area, please refer to EPA's August 11, 2014 approval 
of the Commonwealth's demonstration applicable to Richmond. See 79 FR 
46711.

III. Response to Comments

    EPA received several anonymous comments on the October 21, 2016 
proposed rulemaking. These comments are summarized below with EPA's 
response.
    Comment: The commenter states that Virginia should retain Stage II 
requirements, as they will keep Virginia's standards for good air 
quality at its highest when there is a legal requirement that must be 
followed.
    Response: EPA disagrees with the commenter's assertion that 
retaining Stage II as a regulatory requirement will maintain air 
quality in the regulated Virginia areas in question. Virginia 
demonstrated in two prior EPA-approved SIP revisions (80 FR 29959 (May 
26, 2015) and 79 FR 46711 (August 11, 2014)) that retaining Stage II in 
the presence of widespread use of ORVR equipment not only does not 
further reduce refueling emissions--it actually increases emissions due 
to an incompatibility between certain Stage II equipment and ORVR. 
Removal of Virginia Stage II regulatory requirements will not interfere 
with any of the Virginia areas' ability to achieve or maintain any 
NAAQS. Virginia's Stage II removal demonstration SIP revisions which 
EPA approved clearly showed removal of Stage II requirements would not 
interfere with any applicable CAA requirement concerning reasonable 
further progress or attainment of a NAAQS or any other CAA requirement, 
per section 110(l) of the CAA. Virginia's SIP-approved demonstrations 
show that ORVR systems alone will achieve emission reductions 
equivalent to Stage II and ORVR combined in all three Virginia areas 
which were subject to Stage II. Virginia's noninterference 
demonstrations were performed in accordance with EPA's final rule 
determining that ORVR is now in ``widespread use'' in the national 
motor vehicle fleet (May 16, 2012 (77 FR 28770)) and with EPA's 
``Guidance on Removing Stage II Vapor Control

[[Page 21700]]

Programs from State Implementation Plans and Assessing Comparable 
Measures'' (EPA-457/B-12-001, August 7, 2012), hereafter referred to as 
EPA's Stage II Removal Guidance. A copy of this guidance has been 
placed in the public docket for this action.
    Virginia's March 18, 2014 SIP revision demonstrated that removal of 
Stage II in the Washington and Fredericksburg Areas would not increase 
emissions under the approved ozone attainment plan for the Northern 
Virginia portion of the Washington, DC nonattainment area or the 
approved ozone maintenance plan for the Fredericksburg Area, and would 
not interfere with these areas' ability to attain and maintain the 
ozone or any other NAAQS. EPA approved Virginia's March 18, 2014 SIP 
revision on May 26, 2015 (80 FR 29959).
    Virginia's November 12, 2013 SIP revision amended the approved 
maintenance plan SIP for the Richmond Area to demonstrate that removal 
of the Stage II program would not interfere with this area's ability to 
attain the ozone NAAQS. EPA approved Virginia's November 12, 2013 SIP 
revision on August 11, 2014 (79 FR 46711).
    These prior, approved Stage II removal demonstration SIPs show that 
a vast majority of Virginia vehicles being refueled at GDFs are now 
equipped with vehicle-based ORVR systems, and that these ORVR systems 
will better control the VOC refueling emissions previously captured by 
station-based Stage II equipment, making Stage II no longer necessary. 
Given known incompatibilities between certain types of Stage II 
equipment used in Virginia and ORVR systems, removal of Stage II 
regulatory requirements and the resultant decommissioning of Stage II 
systems has been demonstrated by Virginia (in its November 2013 and 
March 2014 SIP revisions) to not interfere with air quality in the 
applicable areas of the Commonwealth. The science and rationale behind 
allowing Virginia to remove Stage II equipment from these areas was 
fully discussed in the SIP noninterference demonstrations approved by 
EPA on August 11, 2014 and May 26, 2015. This action relies upon those 
demonstrations and serves only to remove the Stage II requirements, 
which Virginia has already removed from its own regulations, from the 
SIP.
    Therefore, the commenter's assertion that keeping Stage II as a 
requirement along with ORVR would better maintain air quality than ORVR 
alone is contrary to the prior air quality demonstration SIPs submitted 
by Virginia (and approved by EPA), which demonstrate that air quality 
in affected areas of Virginia is not adversely impacted by removal of 
the Stage II requirement.
    Comment: The commenter generally supports EPA's action to approve 
Virginia's regulatory amendments to remove Stage II, as use of ORVR and 
Stage II is ``terribly inefficient.'' However, the commenter argues 
that the term ``widespread use'' in reference to ORVR is vague. The 
commenter wants EPA to ensure that policies that require ORVR be 
mandatory be implemented in place of Stage II. The commenter asserts 
that ORVR is better than Stage II as a means of recovering refueling 
emissions, but having neither in place would be worse than having them 
both--even if they are incompatible.
    Response: Preliminarily, EPA disagrees with the commenter's 
assertion that ORVR is not required or that policies requiring ORVR are 
not in place. EPA promulgated ORVR standards on April 6, 1994 at 59 FR 
16262, codified at 40 CFR parts 86 (including 86.098-8), 88, and 600. 
Beginning model year 1998, ORVR was phased-in as a required system on 
new passenger vehicles, and has been required on nearly all new highway 
vehicles manufactured since model year 2006. Consequently, ORVR is used 
in such vehicles and controls VOC emissions throughout the United 
States, no matter how any areas are designated and classified with 
respect to the ozone NAAQS.
    Under CAA section 182 (b)(3), Stage II is required to be used at 
GDFs located in areas classified as serious or worse ozone 
nonattainment areas, and consequently controls VOC emissions only in 
such areas and in areas covered by a ``comparable measures'' SIP under 
section 184. Originally, CAA section 182(b)(3) also required Stage II 
in moderate ozone nonattainment areas; however, section 202(a)(6) 
directed that the moderate area requirement no longer applied after EPA 
promulgated ORVR standards in 1994. EPA issued a final rule on May 16, 
2012 (77 FR 28770) determining that ORVR was then in ``widespread use'' 
in the national motor vehicle fleet, under authority of section 
202(a)(6). As a result, EPA waived Stage II requirements under section 
182 for ozone nonattainment areas classified as serious or above. 
States previously required to implement Stage II under section 
182(b)(3) could take action to remove their Stage II program 
requirements via revisions to their SIPs.
    EPA disagrees with the commenter's assertion that ``widespread 
use'' is vaguely defined and that EPA does not have clearly defined 
policies that require ORVR in place of Stage II. EPA's May 2012 
``widespread use'' determination rule, which no one timely challenged 
and cannot be challenged now, clearly defined what constitutes 
widespread use of ORVR, and sets forth how EPA's widespread use 
determination relates to states with Stage II programs in their SIPs. 
Subsequent to issuance of the ``widespread use'' determination action, 
EPA issued its Stage II removal guidance document, for use by states in 
developing SIP revisions to remove Stage II while demonstrating that 
interference with attainment or maintenance of a NAAQS will not occur. 
Virginia's prior, EPA-approved, Stage II removal demonstration SIP 
revisions show not only that removal of Stage II will not jeopardize 
air quality goals for affected Washington, Fredericksburg, and Richmond 
Areas, but also that ORVR alone will achieve greater emission 
reductions than ORVR in combination with Stage II in those Virginia 
Stage II program areas.
    Finally, because EPA has stated that ORVR is required, EPA 
disagrees with the implication from the commenter that our approval of 
the removal of Stage II from the Virginia SIP would leave no vapor 
recovery system in place. ORVR provides for vapor recovery.

IV. Final Action

    In accordance with section 110 of the CAA, EPA is approving 
Virginia's revision to its SIP to amend its Stage II vapor recovery 
regulatory provisions to remove the requirement for Virginia area GDFs 
to operate Stage II in areas formerly subject to Stage II under CAA 
sections 182 and 184, and to add provisions to allow GDFs currently 
operating Stage II equipment the option to decommission those systems.
    Specifically, EPA is approving and incorporating by reference the 
Virginia SIP revision that amended the Commonwealth's Rule 4-37 
governing petroleum liquid and transfer operations applicable to 
existing stationary sources, which includes modified requirements for 
the Commonwealth's Stage II vapor recovery program in 9-VAC5-5220 and 
9VAC5-5270, effective July 20, 2015.
    EPA is approving this SIP revision because Virginia has previously 
demonstrated through its two prior approved Stage II SIP 
noninterference demonstrations that removal of the Stage II program 
regulatory requirement will not result in an increase in emissions that 
could interfere with Virginia's attainment or maintenance of the ozone 
NAAQS or any other applicable CAA requirement.

[[Page 21701]]

V. 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 
revised Stage II program regulations consistent with the relevant 
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.

VI. Incorporation by Reference

    In this rule, 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 Virginia's 
amendments to Article 37 of 9VAC5-40 and also amendments to Virginia's 
general provisions at 9VAC5-20-21, reflecting the addition of a new 
source of documents incorporated by reference, effective on July 20, 
2015. Additionally, EPA is approving Virginia's amended Rule 4-37 
governing petroleum liquid and transfer operations applicable to 
existing stationary sources, specifically 9-VAC5-5220 and 9VAC5-5270, 
effective July 20, 2015.
    Therefore, these materials have been approved by EPA for inclusion 
in the SIP, have been incorporated by reference by EPA into that plan, 
are fully federally enforceable under sections 110 and 113 of the CAA 
as of the effective date of the final rulemaking of EPA's approval, and 
will be incorporated by reference by the Director of the Federal 
Register in the next update to the SIP compilation.\1\ EPA has made, 
and will continue to make, these materials generally available through 
http://www.regulations.gov and/or at the EPA Region III Office (please 
contact the person identified in the FOR FURTHER INFORMATION CONTACT 
section of this preamble for more information).
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    \1\ 62 FR 27968 (May 22, 1997).
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VII. 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 Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     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

[[Page 21702]]

appropriate, disproportionate human health or environmental effects, 
using practicable and legally permissible methods, under Executive 
Order 12898 (59 FR 7629, February 16, 1994).
    The SIP is not approved to apply on any Indian reservation land as 
defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian 
tribe has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the rule does not have tribal implications and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000).

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 July 10, 2017. 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 to amend Virginia's Stage II regulatory provisions 
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, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: April 14, 2017.
Cecil Rodrigues,
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:
0
a. The table in paragraph (c) is amended by revising the entry for 
Section 5-40-5220 and by adding an entry for Section 5-40-5270; and
0
b. The table in paragraph (e) is amended by revising the entry for 
``Documents Incorporated by Reference (9 VAC 5-20-21, Section B.)'' and 
by adding an entry for ``Documents Incorporated by Reference (9 VAC 5-
20-21, Section E.15.).''
    The revisions and additions read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

                                 EPA-Approved Virginia Regulations and Statutes
----------------------------------------------------------------------------------------------------------------
                                                         State
       State citation            Title/subject         effective      EPA approval date     Explanation  [former
                                                         date                                  SIP citation]
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                 9 VAC 5, Chapter 40 Existing Stationary Sources
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                           Part II Emissions Standards
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
         Article 37 Emission Standards for Petroleum Liquid Storage and Transfer Operations (Rule 4-37)
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
5-40-5220..................  Standard for Volatile      07/30/2015  05/10/2017 [Insert     .....................
                              Organic Compounds.                     Federal Register
                                                                     Citation].
 
                                                  * * * * * * *
5-40-5270..................  Standard for Toxic         07/30/2015  05/10/2017 [Insert     .....................
                              Pollutants.                            Federal Register
                                                                     Citation].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
    (e) * * *

[[Page 21703]]



----------------------------------------------------------------------------------------------------------------
                                                               State
   Name of non-regulatory SIP     Applicable geographic      submittal     EPA approval date      Additional
            revision                       area                date                               explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Documents Incorporated by        Northern Virginia             10/1/2015  05/10/2017 [Insert  State effective
 Reference (9 VAC 5-20-21,        (Metropolitan                            Federal Register    date is 7/30/15.
 Section B.).                     Washington) Ozone                        Citation].
                                  Nonattainment Area,
                                  Fredericksburg Ozone
                                  Maintenance Area,
                                  Richmond-Petersburg
                                  Ozone Maintenance Area.
 
                                                  * * * * * * *
Documents Incorporated by        Northern Virginia             10/1/2015  05/10/2017 [Insert  State effective
 Reference (9 VAC 5-20-21,        (Metropolitan                            Federal Register    date is 7/30/15.
 Section E.15.).                  Washington) Ozone                        Citation].
                                  Nonattainment Area,
                                  Fredericksburg Ozone
                                  Maintenance Area,
                                  Richmond-Petersburg
                                  Ozone Maintenance Area.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2017-09387 Filed 5-9-17; 8:45 am]
 BILLING CODE 6560-50-P