[Federal Register Volume 82, Number 247 (Wednesday, December 27, 2017)]
[Proposed Rules]
[Pages 61200-61203]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-27522]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2017-0544; FRL-9972-40-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Revisions to the Regulatory Definition of Volatile Organic 
Compound

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve two state implementation plan (SIP) revisions (Revision C16 and 
Revision I16) formally submitted by the Commonwealth of Virginia. These 
revisions pertain to amendments made to the definition of ``volatile 
organic compound'' (VOC) in the Virginia Administrative Code to conform 
with EPA's regulatory definition of VOC. Specifically, these amendments 
remove the record keeping and reporting requirements for t-butyl 
acetate (also known as tertiary butyl acetate or TBAC; Chemical 
Abstracts Service [CAS] number: 540-88-5) and add 1,1,2,2-Tetrafluoro-
1-(2,2,2-trifluoroethoxy) ethane (also known as HFE-347pcf2; CAS 
number: 406-78-0) as a compound excluded from the regulatory definition 
of VOC, which match actions EPA has taken. EPA is approving these 
revisions to update the definition of VOC in the Virginia SIP under the 
Clean Air Act (CAA).

DATES: Written comments must be received on or before January 26, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2017-0544 at http://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 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 
email at [email protected].

SUPPLEMENTARY INFORMATION: On July 31, 2017, the Commonwealth of 
Virginia, through the Virginia Department of Environmental Quality 
(VADEQ), submitted two SIP revisions (Revisions C16 and Revision I16). 
Revision C16 requested that the definition of VOC be updated in the 
Virginia SIP to conform with EPA's February 25, 2016 (81 FR 9339) final 
rulemaking updating EPA's regulatory definition of VOC in 40 CFR 
51.100(s) to remove the recordkeeping, emissions reporting, 
photochemical dispersion modeling, and inventory requirements related 
to the use of TBAC as a VOC. Revision I16 requests that the definition

[[Page 61201]]

of VOC be updated in the Virginia SIP to conform with EPA's August 1, 
2016 (81 FR 50330) final rulemaking updating EPA's regulatory 
definition of VOC in 40 CFR 51.100(s) to add 1,1,2,2-Tetrafluoro-1-
(2,2,2-trifluoroethoxy) ethane to the list of compounds excluded from 
EPA's regulatory definition of VOC.

I. Background

    VOCs are organic compounds of carbon that, in the presence of 
sunlight, react with sources of oxygen molecules, such as nitrogen 
oxides (NOX) and carbon monoxide (CO), in the atmosphere to 
produce tropospheric ozone, commonly known as smog. Common sources that 
may emit VOCs include paints, coatings, housekeeping and maintenance 
products, and building and furnishing materials. Outdoor emissions of 
VOCs are regulated by EPA primarily to prevent the formation of ozone.
    VOCs have different levels of volatility, depending on the 
compound, and react at different rates to produce varying amounts of 
ozone. VOCs that are non-reactive or of negligible reactivity to form 
ozone react slowly and/or form less ozone; therefore, reducing their 
emissions has limited effects on local or regional ozone pollution. 
Section 302(s) of the CAA specifies that EPA has the authority to 
define the meaning of VOC and what compounds shall be treated as VOCs 
for regulatory purposes. It is EPA's policy that organic compounds with 
a negligible level of reactivity should be excluded from the regulatory 
definition of VOC in order to focus control efforts on compounds that 
significantly affect ozone concentrations. EPA uses the reactivity of 
ethane as the threshold for determining whether a compound has 
negligible reactivity.
    Compounds that are less reactive than, or equally reactive to, 
ethane under certain assumed conditions may be deemed negligibly 
reactive and, therefore, suitable for exemption by EPA from the 
regulatory definition of VOC. The policy of excluding negligibly 
reactive compounds from the regulatory definition of VOC was first laid 
out in the ``Recommended Policy on Control of Volatile Organic 
Compounds'' (42 FR 35314, July 8, 1977) and was supplemented 
subsequently with the ``Interim Guidance on Control of Volatile Organic 
Compounds in Ozone State Implementation Plans'' (70 FR 54046, September 
13, 2005). The regulatory definition of VOC as well as a list of 
compounds that are designated by EPA as negligibly reactive can be 
found at 40 CFR 51.100(s).
    On September 30, 1999, EPA proposed to revise the regulatory 
definition of VOC in 40 CFR 51.100(s) to exclude TBAC as a VOC (64 FR 
52731). In most cases, when a negligibly reactive VOC is exempted from 
the definition of VOC, emissions of that compound are no longer 
recorded, collected, or reported to states or the EPA as part of VOC 
emissions. However, EPA's final rule excluded TBAC from the definition 
of VOC for purposes of VOC emissions limitations or VOC content 
requirements, but continued to define TBAC as a VOC for purposes of all 
recordkeeping, emissions reporting, photochemical dispersion modeling, 
and inventory requirements that apply to VOC (69 FR 69298, November 29, 
2004) (2004 Final Rule). This was primarily due to EPA's conclusion in 
the 2004 Final Rule that ``negligibly reactive'' compounds may 
contribute significantly to ozone formation if present in sufficient 
quantities and that emissions of these compounds need to be represented 
accurately in photochemical modeling analyses. Per EPA's 2004 Final 
Rule, Virginia partially excluded TBAC from the regulatory definition 
of VOC, which was approved into Virginia's SIP on August 18, 2006 (71 
FR 47742).
    When EPA exempted TBAC from the VOC definition for purposes of 
control requirements in the 2004 Final Rule, EPA created a new category 
of compounds and a new reporting requirement that required that 
emissions of TBAC be reported separately by states and, in turn, by 
industry. However, EPA did not issue any guidance on how TBAC emissions 
should be tracked and reported. Therefore, the data that was reported 
as a result of these requirements was incomplete and inconsistent. 
Also, in the 2004 Final Rule, EPA stated that the primary objective of 
the recordkeeping and reporting requirements for TBAC was to address 
the cumulative impacts of ``negligibly reactive'' compounds and 
suggested that future exempt compounds may also be subject to such 
requirements. However, such requirements were not included in any other 
proposed or final VOC exemptions.
    Because having high quality data on TBAC emissions alone was 
unlikely to be useful in assessing the cumulative impacts of 
``negligibly reactive'' compounds on ozone formation, EPA subsequently 
concluded that the recordkeeping and reporting requirements for TBAC 
were not achieving their primary objective of informing more accurate 
photochemical modeling in support of SIP submissions. Also, there was 
no evidence that TBAC was being used at levels that would cause concern 
for ozone formation and that the requirements were not providing 
sufficient information to evaluate the cumulative impacts of exempted 
compounds. Therefore, because the requirements were not addressing 
EPA's concerns as they were intended, EPA revised the regulatory 
definition of VOC under 40 CFR 51.100(s) to remove the recordkeeping 
and reporting requirements for TBAC (February 25, 2016, 81 FR 9341). 
EPA's rationale for this action is explained in more detail in the 
final rule for that action. See 81 FR 50330 (August 1, 2016).
    On August 1, 2016, EPA promulgated a final rule revising the 
regulatory definition of VOC in 40 CFR 51.100(s) to add HFE-347pcf2 to 
the list of compounds excluded from the regulatory definition of VOC 
(81 FR 50330). This action was based on EPA's consideration of the 
compound's negligible reactivity and low contribution to ozone as well 
as the low likelihood of risk to human health or the environment. EPA's 
rationale for this action is explained in more detail in the final rule 
for this action. See 81 FR 50330 (August 1, 2016).

II. Summary of SIP Revision and EPA Analysis

    In order to conform with EPA's current regulatory definition of VOC 
in 40 CFR 51.100(s), the Virginia State Air Pollution Control Board 
amended the definition of VOC in 9 VAC 5-10-20. These amendments 
removed the recordkeeping and reporting requirements for TBAC (Revision 
C16) and added HFE-347pcf2 to the list of compounds excluded from the 
regulatory definition of VOC (Revision I16). Revision C16 was adopted 
by the State Air Pollution Control Board on June 17, 2016 and was 
effective as of December 15, 2016. Revision I16 was adopted by the 
State Air Pollution Control Board on December 5, 2014 and was effective 
as of July 30, 2015. VADEQ formally submitted Revision C16 and Revision 
I16 as two separate SIP revisions on July 31, 2017.
    Virginia's amendments to the definition of VOC in 9 VAC 5-10-20 are 
in accordance with EPA's regulatory changes to the definition of VOC in 
40 CFR 51.100(s) and are therefore approvable for the Virginia SIP in 
accordance with CAA section 110. Also, because EPA has made the 
determination that TBAC and HFE-347pcf2 are of negligible reactivity 
and therefore have low contributions to ozone as well as low likelihood 
of risk

[[Page 61202]]

to human health or the environment, removing these chemicals from the 
definition of VOC in the Virginia SIP as well as the recordkeeping and 
reporting requirements for these chemicals will not interfere with 
attainment of any NAAQS, reasonable further progress, or any other 
requirement of the CAA. Thus, the removal of the recordkeeping and 
reporting requirements for TBAC and the addition of HFR-347pcf2 to the 
list of compounds excluded from the regulatory definition of VOC is in 
accordance with CAA section 110(l).

III. Proposed Action

    EPA is proposing to approve both Revision C16 and Revision I16, 
submitted on July 31, 2017, as revisions to the Virginia SIP, as the 
submissions meet the requirements of CAA section 110. Revision C16 
updates the regulatory definition of VOC in the Virginia SIP and 
removes the recordkeeping, emissions reporting, photochemical 
dispersion modeling, and inventory requirements related to the use of 
TBAC as a VOC. Revision I16 updates the regulatory definition of VOC in 
the Virginia SIP to add HFE-347pcf2 to the list of compounds excluded 
from the regulatory definition of VOC. EPA is soliciting public 
comments on the issues discussed in this document. These comments will 
be considered before taking final action.

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 proposed rule, EPA is proposing to include in a final EPA 
rule regulatory text that includes incorporation by reference. In 
accordance with requirements of 1 CFR 51.5, EPA is proposing to 
incorporate by reference the updated definition of VOC in 9 VAC 5-10-20 
of the Virginia Administrative Code that removed the recordkeeping, 
emissions reporting, photochemical dispersion modeling, and inventory 
requirements related to the use of TBAC as a VOC and added HFE-347pcf2 
to the list of compounds excluded from the regulatory definition of 
VOC. EPA has made, and will continue to make, these materials generally 
available through http://www.regulations.gov and at the EPA Region III 
Office (please contact the person identified in the For Further 
Information Contact section of this preamble for more information).

VI. Statutory and Executive Order Reviews

    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 proposed 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);
     is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     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);

[[Page 61203]]

     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).
    This action amending the definition of VOC in the Virginia SIP to 
conform with the regulatory definition of VOC in 40 CFR 51.100(s) 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).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: December 12, 2017.
Cosmo Servidio,
Regional Administrator, Region III.
[FR Doc. 2017-27522 Filed 12-26-17; 8:45 am]
 BILLING CODE 6560-50-P