[Federal Register Volume 83, Number 49 (Tuesday, March 13, 2018)]
[Rules and Regulations]
[Pages 10788-10791]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-04937]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2017-0544; FRL-9975-37-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: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving two 
state implementation plan (SIP) revisions (Revision C16 and Revision 
I16) formally submitted by the Commonwealth of Virginia (Virginia). The 
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 in 
accordance with the requirements of the Clean Air Act (CAA).

DATES: This final rule is effective on April 12, 2018.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2017-0544. 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

    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 is of 
negligible reactivity. Compounds that are less or equally reactive as 
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 ``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).

[[Page 10789]]

    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 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 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 9339).
    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 9VAC5-10-20 to remove the 
recordkeeping and reporting requirements for TBAC and add HFE-347pcf2 
to the list of compounds excluded from the regulatory definition of 
VOC. On July 31, 2017, the Commonwealth of Virginia, through the 
Virginia Department of Environmental Quality (VADEQ), formally 
submitted these amendments as two requested revisions (Revision C16 and 
Revision I16) to the Virginia SIP. 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 requested that the definition 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 HFE-347pcf2 to the list of compounds excluded from 
EPA's regulatory definition of VOC.
    Virginia's amendments to the definition of VOC in 9VAC5-10-20 are 
in accordance with EPA's regulatory changes to the definition of VOC in 
40 CFR 51.100(s) and are therefore approvable for inclusion in 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 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).
    On December 27, 2017 (82 FR 61200), EPA published a notice of 
proposed rulemaking (NPR) for the Commonwealth of Virginia. In the NPR, 
EPA proposed approval of Revision C16, which updated the definition of 
VOC in the Virginia SIP to remove the recordkeeping, emissions 
reporting, photochemical dispersion modeling, and inventory 
requirements related to the use of TBAC as a VOC, and Revision I16, 
which updated the definition of VOC in the Virginia SIP by adding HFE-
347pcf2 to the list of compounds excluded from EPA's regulatory 
definition of VOC. No public comments were received on the NPR.

III. Final Action

    EPA is approving both Revision C16 and Revision I16, submitted on 
July 31, 2017 by VADEQ, 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 by 
removing 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.

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

[[Page 10790]]

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 the definition of VOC in 9VAC5-10-20 of the Virginia Administrative 
Code 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). 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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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);
     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 specified by Executive Order 13175 (65 FR 67249, November 9, 
2000).

[[Page 10791]]

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 May 14, 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 updating the definition of VOC in the Virginia SIP 
by removing the recordkeeping, emissions reporting, photochemical 
dispersion modeling, and inventory requirements related to the use of 
TBAC as a VOC and adding HFE-347pcf2 to the list of compounds excluded 
from the regulatory definition of VOC 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, Intergovernmental relations, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: February 26, 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 
two entries for ``Section 5-10-20'' after the entry for ``Section 5-10-
20'' (with the State effective date of 7/30/15) to read 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 10 General Definitions [Part I]
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                                                  * * * * * * *
5-10-20....................  Terms Defined.......        12/15/16  3/13/18, [Insert     Definition of ``volatile
                                                                    Federal Register     organic compound'' is
                                                                    citation].           revised by removing the
                                                                                         recordkeeping,
                                                                                         emissions reporting,
                                                                                         photochemical
                                                                                         dispersion modeling,
                                                                                         and inventory
                                                                                         requirements related to
                                                                                         the use of t-butyl
                                                                                         acetate (also known as
                                                                                         tertiary butyl acetate
                                                                                         or TBAC) as a VOC.
5-10-20....................  Terms Defined.......         5/19/17  3/13/18, [Insert     Definition of ``volatile
                                                                    Federal Register     organic compound'' is
                                                                    citation].           revised by adding
                                                                                         1,1,2,2,-Tetrafluoro-1-
                                                                                         (2,2,2-trifluoroethoxy)
                                                                                         ethane (also known as
                                                                                         HFE-347pcf2) to the
                                                                                         list of compounds
                                                                                         excluded from the
                                                                                         regulatory definition
                                                                                         of VOC.
 
                                                  * * * * * * *
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[FR Doc. 2018-04937 Filed 3-12-18; 8:45 am]
 BILLING CODE 6560-50-P