[Federal Register Volume 83, Number 48 (Monday, March 12, 2018)]
[Proposed Rules]
[Pages 10652-10655]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-04812]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2017-0738; FRL-9975-35-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Emissions Statement Rule Certification for the 2008 Ozone 
National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a state implementation plan (SIP) revision formally submitted 
by the Commonwealth of Virginia (Virginia). Under the Clean Air Act 
(CAA), states' SIPs must require stationary sources in ozone 
nonattainment areas classified as marginal or above to report annual 
emissions of nitrogen oxides (NOX) and volatile organic 
compounds (VOC). This emissions statement requirement also applies to 
stationary sources located in the Ozone Transport Region (OTR) that 
emit or have the potential to emit at least 50 tons per year (tpy) of 
VOC or 100 tpy of NOX. The SIP revision provides Virginia's 
certification that its existing emissions statement program satisfies 
the emissions statement requirements of the CAA for the 2008 ozone 
National Ambient Air Quality Standards (NAAQS). EPA is proposing to 
approve Virginia's emissions statement program certification for the 
2008 ozone NAAQS as a SIP revision in accordance with the requirements 
of the CAA.

DATES: Written comments must be received on or before April 11, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2017-0738 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: 

I. Background

    Under the CAA, EPA establishes NAAQS for criteria pollutants in 
order to protect human health and the

[[Page 10653]]

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. See 
73 FR 16436 (March 27, 2008).
    On May 21, 2012 and June 11, 2012, EPA designated nonattainment 
areas for the 2008 ozone NAAQS. 77 FR 30088 and 77 FR 34221. Effective 
July 20, 2012, the Washington, DC-MD-VA area was designated as marginal 
nonattainment for the 2008 ozone NAAQS. The Washington, DC-MD-VA 
nonattainment area is comprised of Arlington County, Fairfax County, 
Loudoun County, Prince William County, Alexandria City, Fairfax City, 
Falls Church City, Manassas City, and Manassas Park City. See 40 CFR 
81.347.
    Section 182 of the CAA identifies additional plan submissions and 
requirements for ozone nonattainment areas. Specifically, section 
182(a)(3)(B) of the CAA requires that states develop and submit, as a 
revision to their SIP, rules which establish annual reporting 
requirements for certain stationary sources. Sources that are within 
marginal or above ozone nonattainment areas must annually report the 
actual emissions of NOX and VOC to the state. However, 
states may waive sources that emit under 25 tpy of NOX and 
VOC if the state provides an inventory of emissions from such class or 
category of sources as required by CAA sections 172 and 182. See CAA 
section 182(a)(3)(B)(ii).
    Additionally, portions of Virginia are included in the ozone 
transport region (OTR) established by Congress in section 184 of the 
CAA. The OTR is comprised of the states of Connecticut, Delaware, 
Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, 
Pennsylvania, and the Consolidated Metropolitan Statistical Area that 
includes the District of Columbia and portions of Virginia. The areas 
designated as in the Virginia portion of the OTR are as follows: 
Arlington County, Fairfax County, Loudoun County, Prince William 
County, Stafford County, Alexandria City, Fairfax City, Falls Church 
City, Manassas City, and Manassas Park City.\1\
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    \1\ See, e.g. ``Approval and Promulgation of Air Quality 
Implementation Plans; Virginia; NSR in the Ozone Transport Region'', 
71 FR 39570 (July 13, 2006) and 71 FR 890 (January 6, 2006).
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    Pursuant to section 184(b)(2), any stationary source located in the 
OTR that emits or has the potential to emit at least 50 tpy of VOC 
shall be considered a major stationary source and subject to the 
requirements which would be applicable to major stationary sources if 
the area was classified as a moderate nonattainment area. See CAA 
section 184. Thus, states within the OTR are subject to plan (or SIP) 
requirements in CAA section 182(b) applicable to moderate nonattainment 
areas. Also, section 182(f)(1) of the CAA requires that the plan 
provisions required for major stationary sources of VOC also apply to 
major stationary sources of NOX for states with ozone 
nonattainment areas. A major stationary source of NOX is 
defined as a stationary facility or source of air pollutants which 
directly emits, or has the potential to emit, 100 tpy or more of 
NOX. See CAA section 302(j).
    In summary, sources located within the portions of Virginia 
included in the OTR, including areas designated as attainment for the 
2008 ozone NAAQS, that emit more than 50 tpy of VOC or 100 tpy of 
NOX are considered major sources and are subject to the same 
requirements as major stationary sources located in moderate or above 
nonattainment areas. These requirements include the emissions statement 
requirements of CAA section 182(a)(3)(B). See CAA section 182(f) and 
184(b)(2). Sources located in designated marginal or above 
nonattainment areas must also submit an emissions statement as required 
by CAA section 182(a)(3)(B). As stated previously, states may waive 
sources that emit less than the 25 tpy of NOX and 25 tpy of 
VOC threshold if the state provides an inventory of emissions from such 
class or category of sources as required by CAA sections 172 and 182. 
See CAA section 182(a)(3)(B)(ii). States are required by section 
182(a)(3)(B) of the CAA to submit, for approval into the state's SIP, 
rules requiring the sources described above to provide annual 
statements showing their actual emissions of NOX and VOC to 
the state.
    The EPA published guidance on source emissions statements in a July 
1992 memorandum titled, ``Guidance on the Implementation of an Emission 
Statement Program'' and in a March 14, 2006 memorandum titled, 
``Emission Statement Requirements Under 8-hour Ozone NAAQS 
Implementation'' (2006 memorandum). In addition, on March 6, 2015, EPA 
issued a final rule addressing a range of nonattainment area SIP 
requirements for the 2008 ozone NAAQS, including the emissions 
statement requirements of CAA section 182(a)(3)(B) (2015 final rule). 
80 FR 12264. The 2006 memorandum clarified that the source emissions 
statement requirement of CAA section 182(a)(3)(B) was applicable to all 
areas designated nonattainment for the 1997 ozone NAAQS and classified 
as marginal or above under subpart 2, part D, title I of the CAA. Per 
EPA's 2015 final rule, the source emissions statement requirement also 
applies to all areas designated nonattainment for the 2008 ozone NAAQS.
    According to EPA's 2015 final rule, most areas that are required to 
have an emissions statement program for the 2008 ozone NAAQS already 
have one in place due to a nonattainment designation for an earlier 
ozone NAAQS. EPA's 2015 final rule states that, ``If an area has a 
previously approved emissions statement rule in force for the 1997 
ozone NAAQS or the 1-hour ozone NAAQS that covers all portions of the 
nonattainment area for the 2008 ozone NAAQS, such rule should be 
sufficient for purposes of the emissions statement requirement for the 
2008 ozone NAAQS.'' In cases where an existing emissions statement rule 
is still adequate to meet the emissions statement requirement under the 
2008 ozone NAAQS, states may provide the rationale for that 
determination to EPA in a written statement for approval in the SIP to 
meet the requirements of CAA section 182(a)(3)(B). In this statement, 
states should identify how the emissions statement requirements of CAA 
section 182(a)(3)(B) are met by their existing emissions statement 
rule.
    In summary, the Commonwealth of Virginia is required to submit, as 
a formal revision to its SIP, a statement certifying that Virginia's 
existing emissions statement program satisfies the requirements of CAA 
section 182(a)(3)(B) and covers the Washington, DC-MD-VA nonattainment 
area for the 2008 ozone NAAQS.\2\
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    \2\ EPA did not require Virginia or other states to certify that 
its existing SIP approved emissions statement program continued to 
satisfy CAA requirements for areas in the OTR to have an emissions 
statement program.

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[[Page 10654]]

II. Summary of SIP Revision and EPA Analysis

    On August 1, 2017, the Commonwealth of Virginia, through the 
Virginia Department of Environmental Quality (VADEQ), submitted, as a 
formal revision to its SIP, a statement certifying that Virginia's 
existing SIP-approved emissions statement program covers the Virginia 
portion of the Washington, DC-MD-VA nonattainment area for the 2008 
ozone NAAQS and is at least as stringent as the requirements of CAA 
section 182(a)(3)(B). In its submittal, Virginia states that the 
emissions statement requirements of CAA section 182(a)(3)(B) are 
contained under 9VAC5-20-160 (Registration) of the Virginia 
Administrative Code and are SIP-approved under 40 CFR 52.2420(c). 
According to Virginia, these provisions mandate that facilities 
emitting more than 25 tpy of NOX or VOC must submit emission 
statements to Virginia while those emitting less than 25 tpy must 
comply with inventory requirements.
    The provisions under 9VAC5-20-160 that implement Virginia's 
emissions statement program were approved into the Virginia SIP on May 
2, 1995 (60 FR 21451).\3\ These provisions require the owner of any 
stationary source that emits 25 tpy or more of VOC or NOX 
and is located in an emissions control area designated under 9VAC5-20-
206 (Volatile Organic Compound and Nitrogen Oxides Emissions Control 
Areas) to submit an emissions statement to the Virginia State Air 
Pollution Control Board by April 15 of each year for the emissions 
discharged during the previous calendar year.\4\ Emissions statements 
are required to be prepared and submitted in accordance with 9VAC5-20-
121 (Air Quality Program Policies and Procedures), which references 
Virginia's January 1, 1993 document AQP-8 titled, ``Procedures for 
Preparing and Submitting Emission Statements for Stationary Sources.'' 
The provisions under 9VAC5-20-121 were also approved into the Virginia 
SIP on May 2, 1995 (60 FR 21451).
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    \3\ The provisions under 9VAC5-20-160 were derived from VR120-
02-31. EPA's May 2, 1995 direct final rulemaking (DFR) approved a 
SIP revision submitted by the Commonwealth of Virginia requesting 
the addition of provisions under VR120-02-31 paragraph B, which 
established Virginia's emissions statement program, and Appendix S 
(Air Quality Program Policies and Procedures), which described the 
procedure for preparing and submitting emissions statements for 
stationary sources, to the Virginia SIP. See 60 FR 21451. On March 
6, 1992, the Virginia State Assembly enacted Chapter 216--an act to 
amend Section 9-77.7, Code of Virginia, which authorized 
reorganization of the Virginia Administrative Code, including 
reorganization of the air pollution control regulations, effective 
July 1, 1992. Beginning April 17, 1995, Virginia began publication 
of its air quality control regulations in the new format. On April 
21, 2000, EPA approved a SIP revision from Virginia requesting the 
reorganization and renumbering of the Virginia SIP to match the 
recodification of Virginia's air pollution control regulations under 
the Virginia Administrative Code. See 65 FR 21315. As a result, the 
SIP approved provisions under VR120-02-31 and Appendix S are now 
under 9VAC5-20-160 and 9VAC5-20-121, respectively.
    \4\ The emissions control areas defined under 9VAC5-20-206 
include the Northern Virginia Emissions Control Area, the 
Fredericksburg Emissions Control Area, the Richmond Emissions 
Control Area, the Hampton Roads Emissions Control Area, and the 
Western Virginia Emissions Control Area. The Northern Virginia 
Emissions Control Area consists of the localities of Arlington 
County, Fairfax County, Loudoun County, Prince William County, 
Stafford County, Alexandra City, Fairfax City, Falls Church City, 
Manassas City, and Manassas Park City.
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    EPA's review of the Commonwealth of Virginia's submittal finds that 
Virginia's existing, SIP-approved emissions statement program under 
9VAC5-20-160 satisfies the requirements of CAA section 182(a)(3)(B) for 
emission statements for sources located in marginal or above 
nonattainment areas including such sources in the Virginia portion of 
the Washington, DC-MD-VA nonattainment area for the 2008 ozone NAAQS. 
EPA notes 9VAC5-20-160 also requires sources located in portions of 
Virginia included in the OTR to submit required emission statements in 
accordance with CAA section 184 (OTR requirements) and 182 (plan 
submissions and requirements for ozone nonattainment areas). Pursuant 
to CAA sections 182 and 184, Virginia is required to have an emissions 
statement program for sources located in marginal or above 
nonattainment areas and the portions of Virginia included in the OTR. 
EPA finds the provisions under 9VAC5-20-160 satisfy these requirements 
of CAA sections 182 and 184 because they apply to the Northern Virginia 
Emissions Control Area, which includes the Virginia localities within 
the Virginia portion of the Washington, DC-MD-VA nonattainment area for 
the 2008 ozone NAAQS (i.e., Arlington County, Fairfax County, Loudoun 
County, Prince William County, Alexandria City, Fairfax City, Falls 
Church City, Manassas City, and Manassas Park City), and the portions 
of Virginia included in the OTR (i.e., Arlington County, Fairfax 
County, Loudoun County, Prince William County, Stafford County, 
Alexandria City, Fairfax City, Falls Church City, Manassas City, and 
Manassas Park City). EPA also finds Virginia's emissions thresholds for 
sources that are required to submit an emissions statement meet the 
requirements of CAA sections 182 and 184. As stated above, 9VAC5-20-160 
requires the owner of any stationary source located in an emissions 
control area that emits 25 tpy or more of VOC or NOX to 
annually submit an emissions statement. This 25 tpy threshold is 
equivalent to the threshold required by CAA section 182. As previously 
mentioned, per CAA section 182(a)(3)(B)(ii), states may waive sources 
that emit less than 25 tpy of NOX or VOC if the state 
provides an inventory of emissions from such class or category of 
sources as required by CAA sections 172 and 182. Virginia does provide 
emissions inventories for nonattainment areas as required by CAA 
section 172(c)(3).\5\ Therefore, EPA has determined that 9VAC5-20-160, 
which is currently in the Virginia SIP, is appropriate to address the 
emissions statement requirements in section 182(a)(3)(B) for the 2008 
ozone NAAQS. EPA is proposing to approve, as a SIP revision, the 
Commonwealth of Virginia's August 1, 2017 emissions statement program 
certification for the 2008 ozone NAAQS as approvable under CAA section 
182(a)(3)(B). EPA is soliciting public comments on the issues discussed 
in this document. These comments will be considered before taking final 
action.
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    \5\ See, e.g., ``Approval and Promulgation of Air Quality 
Implementation Plans; District of Columbia, Maryland, and Virginia; 
2011 Base Year Emissions Inventories for the Washington, DC-MD-VA 
Nonattainment Area for the 2008 Ozone National Ambient Air Quality 
Standard,'' 80 FR 27255 (May 13, 2015).
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III. Proposed Action

    EPA is proposing to approve the Commonwealth of Virginia's SIP 
revision submitted on August 1, 2017, which certifies that Virginia's 
existing SIP-approved emissions statement program under 9VAC5-20-160 
satisfies the requirements of CAA section 182(a)(3)(B) for the 2008 
ozone NAAQS.

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

[[Page 10655]]

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. 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);
     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 SIP revision consisting of Virginia's certification that its 
existing SIP-approved emissions statement program under 9VAC5-20-160 
satisfies the requirements of CAA section 182(a)(3)(B) for the 2008 
ozone NAAQS 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

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

    Dated: February 26, 2018.
Cosmo Servidio,
Regional Administrator, Region III.
[FR Doc. 2018-04812 Filed 3-9-18; 8:45 am]
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