[Federal Register Volume 82, Number 158 (Thursday, August 17, 2017)]
[Rules and Regulations]
[Pages 39031-39035]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-17235]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2017-0382; FRL-9966-31-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Revisions To Implement the Revocation of the 1997 Ozone NAAQS

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 revisions to the Commonwealth of Virginia state 
implementation plan (SIP). The revisions pertain to amendments made to 
the Virginia Administrative Code. These amendments updated the State 
Air Pollution Control Board's Regulations for the Control and Abatement 
of Air Pollution to be consistent with EPA's final rule implementing 
the 2008 ozone national ambient air quality standards (NAAQS) and 
revoking the 1997 ozone NAAQS. See 80 FR 12264 (March 6, 2015). The 
amendments revised a regulation listing nonattainment areas under the 
1997 ozone NAAQS and a regulation regarding the 1997 ozone standard to 
reflect the revocation of the 1997 ozone NAAQS, which was effective 
April 6, 2015. The amendments also added clarifying text to two 
transportation and general conformity regulations in order to reflect 
the revocation of the 1997 ozone NAAQS. EPA is approving these 
revisions updating the Virginia Administrative Code to reflect the 
revocation of the 1997 ozone NAAQS in accordance with the requirements 
of the Clean Air Act (CAA).

DATES: This rule is effective on October 16, 2017 without further 
notice, unless EPA receives adverse written comment by September 18, 
2017. 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 No. EPA-R03-
OAR-2017-0382 at https://www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, 
follow the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, EPA may publish any comment received to its 
public docket. Do not submit electronically any

[[Page 39032]]

information you consider to be confidential business information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Sara Calcinore, (215) 814-2043, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    Ground level ozone is formed when nitrogen oxides (NOX) 
and volatile organic compounds (VOC) react in the presence of sunlight. 
NOX and VOC are referred to as ozone precursors and are 
emitted by many types of pollution sources, including motor vehicles, 
power plants, industrial facilities, and area wide sources, such as 
consumer products and lawn and garden equipment. Scientific evidence 
indicates that adverse public health effects occur following exposure 
to ozone. These effects are more pronounced in children and adults with 
lung disease. Breathing air containing ozone can reduce lung function 
and inflame airways, which can increase respiratory symptoms and 
aggravate asthma or other lung diseases. In response to this scientific 
evidence, EPA promulgated in 1979 the first ozone NAAQS, the 0.12 part 
per million (ppm) 1-hour ozone NAAQS. See 44 FR 8202 (February 8, 
1979).
    EPA is required to review and reevaluate the ozone NAAQS every 5 
years in order to consider updated information regarding the effects of 
ozone on human health and the environment. Since February 8, 1979, the 
date of the first ozone NAAQS promulgation, EPA has reviewed and 
revised the ozone standard to protect the public health and welfare. On 
July 18, 1997, EPA promulgated a revised ozone NAAQS, referred to as 
the 1997 ozone NAAQS, of 0.08 ppm averaged over eight hours. 62 FR 
38855. This 8-hour ozone NAAQS was determined to be more protective of 
public health than the previous 1979 1-hour ozone NAAQS. In 2008, EPA 
revised the 8-hour ozone NAAQS from 0.08 to 0.075 ppm. The 0.075 ppm 
standard is referred to as the 2008 ozone NAAQS. See 73 FR 16436 (March 
27, 2008).\1\
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    \1\ On October 1, 2015, EPA strengthened the ground-level ozone 
NAAQS to 0.070 ppm. See 80 FR 65292 (October 26, 2015). This 
rulemaking addresses the 2008 ozone NAAQS and does not address the 
2015 ozone NAAQS.
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    On March 6, 2015, EPA established a final rule addressing a range 
of nonattainment area SIP requirements for the 2008 ozone NAAQS. 80 FR 
12264. This final rule also revoked the 1997 ozone NAAQS as of April 6, 
2015 and established anti-backsliding requirements that became 
effective once the 1997 ozone NAAQS was revoked. The anti-backsliding 
provisions in 40 CFR 51.1105 require States to retain all applicable 
control requirements for the 1997 ozone NAAQS, while enabling areas, 
where possible, to focus planning efforts on meeting the more 
protective 2008 ozone NAAQS.
    On February 10, 2017, the Commonwealth of Virginia Department of 
Environmental Quality (DEQ) submitted a formal SIP revision (Revision 
G16). The SIP revision consists of amendments made to the Virginia 
Administrative Code to reflect the revocation of the 1997 ozone NAAQS 
according to the final rule established by EPA on March 6, 2015 
implementing the 2008 ozone NAAQS.

II. Summary of SIP Revision and EPA Analysis

    The February 10, 2017 SIP revision submittal includes amended 
versions of provisions in the State Air Pollution Control Board's 
Regulation for the Control and Abatement of Air Pollution including 
9VAC5-20-204, 9VAC5-30-55, 9VAC5-151-20, and 9VAC5-160-30, which were 
adopted by the State Air Pollution Control Board on September 9, 2016 
and effective November 16, 2016. Virginia requests that EPA approve 
this submittal so that these amended regulations become part of the 
Virginia SIP.
    The amendment to 9VAC5-20-204 added text to the section stating 
that the list of Northern Virginia moderate nonattainment areas under 
the 1997 ozone NAAQS is no longer effective after April 6, 2015, the 
effective date of the revocation of the 1997 ozone NAAQS. See 80 FR 
12264 (March 6, 2015). The amendment to 9VAC5-30-55 added text to the 
section stating that the primary and secondary ambient air quality 
standard of 0.08 ppm shall no longer apply after April 6, 2015. 
Virginia also amended the Regulation for Transportation Conformity and 
the Regulation for General Conformity by adding clarifying text to 
9VAC5-151-20 and 9VAC5-160-30 stating that ``The provisions of this 
chapter shall not apply in nonattainment and maintenance areas that 
were designated nonattainment or maintenance under a federal standard 
that has been revoked.'' These revisions to the Virginia Administrative 
Code reflect EPA's revocation of the 1997 ozone NAAQS.
    EPA's review of this material indicates the February 10, 2017 
submittal is approvable as it revises regulations to be consistent with 
EPA's final rule implementing the 2008 ozone NAAQS. See 80 FR 12264 
(March 6, 2015). The revisions update regulations to reflect the 
revocation of the 1997 NAAQS, which was effective April 6, 2015. 
Therefore, the revisions do not affect emissions of air pollutants or 
interfere with any applicable requirement concerning attainment of 
reasonable further progress or any other applicable requirements in the 
CAA. Thus, EPA finds the revision approvable in accordance with section 
110, including section 110(l), of the CAA.

III. Final Action

    EPA is approving the Virginia SIP revision submitted on February 
10, 2017, which includes revisions to several sections of the Virginia 
Administrative Code, including 9VAC5-20-204, 9VAC5-30-55, 9VAC5-151-20, 
and 9VAC5-160-30 which will be incorporated by reference into the 
Virginia SIP. 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 16, 2017 
without further notice unless EPA receives adverse comment by September 
18, 2017. 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. 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,

[[Page 39033]]

EPA may adopt as final those provisions of the rule that are not the 
subject of an adverse comment.

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 
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 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 the revisions 
to 9VAC5-20-204, 9VAC5-30-55, 9VAC5-151-20, and 9VAC5-160-30 of the 
State Air Pollution Control Board's Regulation for the Control and 
Abatement of Air Pollution discussed in Section II of this preamble. 
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 of the SIP compilation.\2\ EPA has made, and will 
continue to make, these materials generally available through 
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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    \2\ 62 FR 27968 (May 22, 1997).
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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 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 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

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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 October 16, 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. 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 to approve revised provisions of the Virginia 
Administrative Code including 9VAC5-20-204, 9VAC5-30-55, 9VAC5-151-20, 
and 9VAC5-160-30 for inclusion in the Virginia SIP may not be 
challenged later in proceedings to enforce its requirements. (See 
section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: August 3, 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, the table in paragraph (c) is amended by revising 
the entries for Sections 5-20-204, 5-30-55, 5-151-20, and 5-160-30. The 
revised text reads as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

                                 EPA-Approved Virginia Regulations and Statutes
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                                                      State                             Explanation [former SIP
     State citation           Title/subject      effective date    EPA approval date           citation]
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                                                  * * * * * * *
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                                     9 VAC 5, Chapter 20 General Provisions
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                                                  * * * * * * *
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                                          Part II Air Quality Programs
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                                                  * * * * * * *
5-20-204................  Nonattainment Areas..        11/16/16  8/17/17, [Insert      Addition of Subdivision
                                                                  Federal Register      C.
                                                                  Citation].           Previous approval 8/14/
                                                                                        15.
 
                                                  * * * * * * *
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                          9 VAC 5, Chapter 30 Ambient Air Quality Standards [Part III]
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                                                  * * * * * * *
5-30-55.................  Ozone (8-hour, 0.08          11/16/16  8/17/17, [Insert      Subdivision D. is revised
                           ppm).                                  Federal Register      to read that the 1997 8-
                                                                  Citation].            hour ozone NAAQS no
                                                                                        longer apply after April
                                                                                        6, 2015.
                                                                                       Previous approval 6/11/
                                                                                        13.
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                                                  * * * * * * *
                                 9 VAC 5, Chapter 151 Transportation Conformity
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                                                  * * * * * * *
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                                           Part II General Provisions
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                                                  * * * * * * *
5-151-20................  Applicability........        11/16/16  8/17/17, [Insert      Subdivision B. is amended
                                                                  Federal Register      to address revoked
                                                                  Citation].            federal standards.
                                                                                       Previous approval 11/20/
                                                                                        09.
 
                                                  * * * * * * *
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                                     9 VAC 5, Chapter 160 General Conformity
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                                                  * * * * * * *
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                                           Part II General Provisions
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                                                  * * * * * * *
5-160-30................  Applicability........        11/16/16  8/17/17, [Insert      Subdivision A. is amended
                                                                  Federal Register      to address revoked
                                                                  Citation].            federal standards.
                                                                                       Previous approval 12/12/
                                                                                        11.
 
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[FR Doc. 2017-17235 Filed 8-16-17; 8:45 am]
 BILLING CODE 6560-50-P