[Federal Register Volume 83, Number 36 (Thursday, February 22, 2018)]
[Rules and Regulations]
[Pages 7610-7614]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-03524]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2017-0382; FRL-9974-66--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: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to approve revisions to the Commonwealth of Virginia (Virginia)
state implementation plan (SIP). The revisions are related to the
implementation of the 2008 ozone national ambient air quality standards
(NAAQS or standards) and the revocation of the 1997 ozone NAAQS. EPA is
approving these revisions updating the Virginia SIP to reflect the
revocation of the 1997 ozone NAAQS in accordance with the requirements
of the Clean Air Act (CAA).
DATES: This final rule is effective on March 26, 2018.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2017-0382. All documents in the docket are listed on
the http://www.regulations.gov website. 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: Sara Calcinore, (215) 814-2043, or by
email at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
Under the CAA, EPA establishes NAAQS for criteria pollutants \1\ in
order to protect human health and the environment. In response to
scientific evidence linking ozone exposure to adverse health effects,
EPA promulgated the first ozone NAAQS, the 0.12 part per million (ppm)
1-hour ozone NAAQS, in 1979. See 44 FR 8202 (February 8, 1979). The CAA
requires EPA to review and reevaluate the NAAQS every 5 years in order
to consider updated information regarding the effects of the criteria
pollutants on human health and the environment. 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 strengthened 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 and is more stringent than the previous 1997
ozone NAAQS. See 73 FR 16436 (March 27, 2008).\2\
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\1\ The ``criteria pollutants'' include ozone (O3),
particulate matter (PM), sulfur dioxide (SO2), nitrogen
dioxide (NO2), carbon monoxide (CO), and lead (Pb).
\2\ 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 issued 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 and
established anti-backsliding requirements for areas not attaining the
1997 ozone NAAQS in 40 CFR 51.1105 that became effective once the 1997
ozone NAAQS was revoked. The anti-backsliding provisions require states
to retain all applicable control requirements for the 1997 ozone NAAQS,
while enabling states, where possible, to focus planning efforts on
meeting the more protective 2008 ozone NAAQS. According to EPA's final
rule, the revocation of the 1997 ozone NAAQS was effective as of April
6, 2015.
On September 9, 2016, Virginia amended the Virginia Administrative
Code to be consistent with EPA's March 6, 2015 final rule. On February
10, 2017, Virginia, through the Virginia Department of Environmental
Quality (VADEQ), formally submitted a SIP revision (Revision G16)
reflecting these amendments.
On August 17, 2017 (82 FR 39097 and 82 FR 39031), EPA
simultaneously published a notice of proposed rulemaking (NPR) and a
direct final rule (DFR) for Virginia approving the SIP revision. EPA
received two adverse comments on the rulemaking and attempted to
withdraw the DFR prior to
[[Page 7611]]
the effective date of October 16, 2017. However, EPA inadvertently did
not withdraw the DFR prior to that date and the rule automatically and
prematurely became effective on October 16, 2017, revising Virginia's
SIP to reflect the revocation of the 1997 ozone NAAQS. In the NPR, EPA
had proposed to approve the SIP revision, which included amendments
made to provisions in Virginia's State Air Pollution Control Board's
Regulations for the Control and Abatement of Air Pollution including
9VAC5-20-204, 9VAC5-30-55, 9VAC5-151-20, and 9VAC5-160-30. These
revisions to the Virginia Administrative Code amended Virginia's
regulatory provisions to reflect EPA's revocation of the 1997 ozone
NAAQS and the implementation of the 2008 ozone NAAQS. In this final
rulemaking, EPA is responding to the comments submitted on the proposed
revision to the Virginia SIP and is reapproving the revisions to the
Virginia SIP to reflect the revocation of the 1997 ozone NAAQS after
our failure to withdraw the DFR (after EPA received adverse public
comments) prior to the October 16, 2017 effective date of the DFR.
II. Summary of SIP Revision and EPA Analysis
Virginia's February 10, 2017 SIP submittal included amended
versions of 9VAC5-20-204, 9VAC5-30-55, 9VAC5-151-20, and 9VAC5-160-30.
Virginia requested that EPA approve the SIP revision so that these
amended regulations would become part of the Virginia SIP. The
amendment to 9VAC5-20-204 added text 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. The amendment to 9VAC5-30-55 added
text 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 or
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. Public Comments and EPA's Responses
EPA received two anonymous public comments on our action to approve
the February 10, 2017 SIP submittal.
Comment: The first commenter stated that EPA cannot revoke the 1997
ozone NAAQS and cited a current court case in the United States Court
of Appeals for the District of Columbia Circuit (D.C. Circuit). The
commenter recommended that EPA wait until the D.C. Circuit's decision
and not ``loosen standards.''
Response: EPA would like to clarify that the proposed revision to
the Virginia SIP does not revoke the 1997 ozone NAAQS as the 1997 ozone
NAAQS were revoked previously by EPA in a separate rulemaking effective
April 6, 2015. See 80 FR 12264. The commenter's ability to challenge
revocation of the 1997 ozone NAAQS was in that prior rulemaking. This
particular rulemaking action is only removing references to the
``revoked'' 1997 ozone NAAQS that had been in Virginia's SIP. Thus, the
commenter's statement that EPA should not revoke the 1997 ozone NAAQS
is not relevant to this rulemaking.
EPA acknowledges that there is presently a legal challenge in the
D.C. Circuit to the rulemaking which revoked the 1997 ozone NAAQS.\3\
However, EPA disagrees with the commenter that EPA should wait for the
outcome of this litigation before approving the Virginia SIP revision.
As stated above, this SIP revision does not revoke the 1997 ozone NAAQS
as the revocation of the NAAQS was effective on April 6, 2015 per EPA's
March 6, 2015 rule. Additionally, nothing in section 110 of the CAA
prevents Virginia from removing its references to the revoked 1997
ozone NAAQS from its SIP, as the removal does not affect emissions of
air pollutants as it does not impact any applicable SIP requirements
that apply to an area, interfere with any applicable requirements in
the CAA, nor interfere with reasonable further progress. See section
110(l) of the CAA. Thus, EPA finds the revision approvable in
accordance with section 110, including section 110(l), of the CAA.
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\3\ South Coast Air Quality Management District v. EPA, Case
Nos. 15-1115, 15-1123 (U.S. Court of Appeals, D.C. Cir.).
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In response to the commenter's concern that EPA's approval will
``loosen standards,'' EPA notes that the 2008 ozone NAAQS of 0.075 ppm,
which EPA is presently implementing in collaboration with states such
as Virginia, is more protective of human health and the environment
than the 1997 ozone NAAQS of 0.08 ppm. In addition, the ozone
nonattainment areas in Virginia are the same for the 1997 ozone NAAQS
as for the 2008 ozone NAAQS. Thus, removing the revoked 1997 ozone
NAAQS from the Virginia SIP is not expected to have any emissions
impact nor interfere with reasonable further progress or any applicable
CAA requirement. See also 80 FR 12264.
Comment Summary: The second commenter requested that EPA not revoke
the ozone NAAQS.
Response: As discussed in detail in response to the first comment,
EPA's approval of the removal of references in the Virginia SIP to the
revoked 1997 ozone NAAQS does not actually revoke the 1997 ozone NAAQS
as EPA previously effectuated that revocation in a prior, separate
rulemaking. See 80 FR 12264.
IV. Final Action
EPA is approving the Virginia SIP revision submitted on February
10, 2017, which includes amendments made to several sections of the
Virginia Administrative Code, including 9VAC5-20-204, 9VAC5-30-55,
9VAC5-151-20, and 9VAC5-160-30, as a revision to the Virginia SIP
because the revisions meet the requirements of CAA section 110. EPA is
reapproving the revisions to Virginia's SIP because the revisions were
added to the SIP prematurely on October 16, 2017 when EPA failed to
withdraw its DFR after receiving two adverse comments on our direct
final approval of the revisions to the Virginia SIP to reflect the
revocation of the 1997 ozone NAAQS. This rule, which responds to the
adverse comments received, finalizes our approval.
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
[[Page 7612]]
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.
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 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.
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).
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.\4\
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\4\ 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);
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);
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 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
[[Page 7613]]
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 April 23, 2018. 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 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: February 9, 2018.
Cosmo Servidio,
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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9 VAC 5, Chapter 20 General Provisions
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Part II Air Quality Programs
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5-20-204...................... Nonattainment Areas........................... 11/16/16 2/22/18, [Insert Federal Addition of Subdivision C.
Register 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 ppm)...................... 11/16/16 2/22/18, [Insert Federal Subdivision D. is revised to
Register Citation]. read that the 1997 8-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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Part II General Provisions
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5-151-20...................... Applicability................................. 11/16/16 2/22/18, [Insert Federal Subdivision B. is amended to
Register Citation]. address revoked federal
standards.
Previous approval 11/20/09.
[[Page 7614]]
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9 VAC 5, Chapter 160 General Conformity
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Part II General Provisions
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5-160-30...................... Applicability................................. 11/16/16 2/22/18, [Insert Federal Subdivision A. is amended to
Register Citation]. address revoked federal
standards.
Previous approval 12/12/11.
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[FR Doc. 2018-03524 Filed 2-21-18; 8:45 am]
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