[Federal Register Volume 83, Number 48 (Monday, March 12, 2018)]
[Rules and Regulations]
[Pages 10626-10628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-04422]



[[Page 10626]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2016-0592; FRL-9975-13--Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Amendment to Ambient Air Quality Standard for Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve a revision to the Commonwealth of Virginia state 
implementation plan (SIP). This revision consists of an amendment to 
Virginia's SIP to incorporate by reference, the most recent federal 
ambient air quality standard for ozone. EPA is approving this revision 
in accordance with the requirements of the Clean Air Act (CAA).

DATES: This final rule is effective on April 11, 2018.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2016-0592. 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: Gavin Huang, (215) 814-2042, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On October 26, 2015 (80 FR 65292), EPA revised the primary and 
secondary national ambient air quality standards (NAAQS) for ozone to 
0.070 parts per million (ppm). The primary and secondary ambient air 
quality standards are met at an ambient air quality monitoring site 
when the 3-year average of the annual fourth-highest daily maximum 8-
hour average ozone concentration is less than or equal to 0.070 ppm.
    On July 25, 2016, the Commonwealth of Virginia through the Virginia 
Department of Environmental Quality (VADEQ) submitted a formal revision 
to its SIP. The SIP revision seeks to incorporate the 2015 ozone NAAQS 
promulgated by EPA into the Virginia SIP.
    On October 16, 2017 (82 FR 47985 and 82 FR 48035), EPA 
simultaneously published a notice of proposed rulemaking (NPR) and a 
direct final rule (DFR) for the Commonwealth of Virginia approving the 
SIP revision. EPA received adverse comments on the rulemaking and 
withdrew the DFR prior to the effective date of December 15, 2017. In 
this final rulemaking, EPA is responding to the comments submitted on 
the proposed revision to the Virginia SIP and is approving the revision 
to the Virginia SIP to incorporate by reference the 2015 ozone NAAQS.

II. Summary of SIP Revision and EPA Analysis

    In the July 25, 2016 SIP submission, Virginia seeks to add 
regulation 9VAC5-30-57 ``Ozone (8-hour 0.070 ppm)'' to the Virginia 
SIP. This regulation incorporates by reference the 2015 ozone NAAQS as 
promulgated by EPA and is consistent with the NAAQS set out in 40 CFR 
part 50. See 80 FR 65292 (October 26, 2015).
    Virginia's submittal seeks to add to the Virginia SIP Regulation 
9VAC5-30-57 which incorporates by reference the 2015 ozone NAAQS, as 
promulgated by EPA. EPA finds the SIP submittal approvable pursuant to 
section 110 of the CAA.
    EPA received public comments on the NPR that will be addressed in 
section III of this rulemaking.

III. Response to Comments

    During the comment period, EPA received several anonymous comments 
on this rulemaking. EPA is responding to the comments submitted on the 
proposed revision to the Virginia SIP specific to this action. All 
other comments received were either supportive of or not specific to 
this action and thus are not addressed here.
    Comment: A commenter stated that EPA should not add the 2015 ozone 
standard to any state's SIP as the Administrator has publicly stated 
that he intends to repeal the ozone standard. The commenter believes 
that the Administrator's announcement can be interpreted as a 
promulgation by the Agency, and EPA should not act until the review is 
completed. The commenter also stated that EPA must hold off on any 
ozone action until a court review is completed.
    Response: EPA disagrees with the comment. Specifically, EPA 
disagrees that it has promulgated, or could promulgate, a change to the 
2015 ozone NAAQS through any public announcement. If EPA were to decide 
to revisit and change the 2015 ozone NAAQS, the existing standards 
would remain in place at least until EPA, through public notice and 
rulemaking, took final action to make any revisions. States may seek to 
incorporate existing NAAQS into their SIPs under CAA section 110. While 
judicial review may be pending relating to the 2015 ozone NAAQS, 
nothing prohibits a state from incorporating by reference the 2015 
ozone NAAQS into its SIP.

IV. Final Action

    EPA is approving the July 25, 2016 Virginia SIP revision submittal 
which seeks to add regulation 9VAC5-30-57 ``Ozone (8-hour 0.070 ppm)'' 
to the Virginia SIP pursuant to section 110 of the CAA. Regulation 
9VAC5-30-57 incorporates by reference the 2015 ozone NAAQS which set 
the level of the 8-hour ozone standard at 0.070 ppm.

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

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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 Virginia 
9VAC5-30-57 described in the amendment to 40 CFR part 52 set forth 
below. 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). 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\
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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);
     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 (Public Law 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 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

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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 May 11, 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 adding regulation 9VAC5-30-57 ``Ozone (8-hour 0.070 
ppm)'' to 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, Ozone.

    Dated: February 23, 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 adding 
the entry ``5-30-57'' in numerical order under the heading ``9 VAC 5, 
Chapter 30 Ambient Air Quality Standards [Part III]'' to read as 
follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

                                                     EPA-Approved Virginia Regulations and Statutes
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                                                                State
          State citation                Title/subject      effective date             EPA approval date              Explanation [former SIP citation]
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                                                                      * * * * * * *
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                                              9 VAC 5, Chapter 30 Ambient Air Quality Standards [Part III]
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                                                                      * * * * * * *
5-30-57...........................  Ozone (8-hour, 0.070       06/01/2016  03/12/2018 [Insert Federal Register     .....................................
                                     ppm).                                  citation].
 
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[FR Doc. 2018-04422 Filed 3-9-18; 8:45 am]
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