[Federal Register Volume 84, Number 206 (Thursday, October 24, 2019)]
[Rules and Regulations]
[Pages 56942-56946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-23133]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2017-0382; FRL-10001-45-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Correction Due to Vacatur of Revisions To Implement the 
Revocation of the 1997 Ozone National Ambient Air Quality Standards 
Final Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; correction.

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SUMMARY: The Environmental Protection Agency (EPA) is correcting the 
state implementation plan (SIP) for the Commonwealth of Virginia to 
remove from the Code of Federal Regulations (CFR) revisions to the 
Virginia SIP that were initially incorporated into the SIP in a 
February 22, 2018 final action that was subsequently vacated and 
remanded to EPA by the Court of Appeals for the Fourth Circuit. This 
action is exempt from notice-and-comment rulemaking because it is 
ministerial in nature.

DATES: This final rule is effective on October 24, 2019.

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 https://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 
https://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, Planning & 
Implementation Branch (3AD30), Air & Radiation Division, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103. The telephone number is (215) 814-
2043. Ms. Calcinore can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background and Rationale for This Action

    Under the Clean Air Act (CAA or the Act), EPA establishes National 
Ambient Air Quality Standards (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 five 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

[[Page 56943]]

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 titled ``Implementation 
of the 2008 National Ambient Air Quality Standards for Ozone: State 
Implementation Plan Review Requirements,'' which addressed 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 final rule also removed the conformity 
requirements for areas designated nonattainment or maintenance under 
the 1997 ozone NAAQS and attainment under the 2008 ozone NAAQS 
(referred to as ``orphan nonattainment areas'' and ``orphan maintenance 
areas,'' respectively). According to EPA's March 6, 2015 final rule, 
the revocation of the 1997 ozone NAAQS was effective April 6, 2015.
    On September 9, 2016, Virginia amended the Virginia Administrative 
Code (VAC) to be consistent with EPA's March 6, 2015 final rule 
revoking the 1997 ozone NAAQS. On February 10, 2017, Virginia, through 
the Virginia Department of Environmental Quality (VADEQ), formally 
submitted a SIP revision (Revision G16) reflecting these amendments. 
Virginia's February 10, 2017 SIP revision included amendments to 
provisions 9VAC5-20-204, 9VAC5-30-55, 9VAC5-151-20, and 9VAC5-160-30 
that reflected EPA's March 6, 2015 final rule.\3\
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    \3\ 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 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.''
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    On February 16, 2018, after EPA had signed the final rulemaking 
notice approving Virginia's February 10, 2017 SIP revision, but six 
days before it was published in the Federal Register, the Court of 
Appeals for the D.C. Circuit issued a decision partially granting 
consolidated petitions for judicial review of EPA's March 6, 2015 final 
rule and vacating portions of that rule. South Coast Air Quality 
Management District v. EPA, 882 F.3d 1138, 1152-53 (D.C. Cir. 2018) 
(referred to as ``South Coast II''). The vacatur applies to portions of 
EPA's March 6, 2015 final rule that formed the underlying basis for 
Virginia's February 10, 2017 SIP revision, including the removal of the 
transportation conformity requirements for orphan nonattainment and 
maintenance areas.
    On February 22, 2018, EPA's final rulemaking notice approving 
Virginia's February 10, 2017 SIP revision was published in the Federal 
Register. 83 FR 7610. This final rule revised the Virginia SIP, 
effective March 26, 2018, to incorporate by reference the amendments to 
9VAC5-20-204, 9VAC5-30-55, 9VAC5-151-20, and 9VAC5-160-30 contained in 
Virginia's February 10, 2017 SIP revision. However, as stated 
previously, the South Coast II decision vacated portions of EPA's March 
6, 2015 final rule that were the basis for these amendments. On October 
29, 2018, in response to a petition filed by Sierra Club seeking review 
of EPA's February 22, 2018 rulemaking pursuant to section 307(b)(1) of 
the Act, Sierra Club v. EPA, No. 18-1441 (4th Cir), EPA filed an 
Unopposed Motion for Voluntary Remand and Vacatur (the Motion), in the 
United States Court of Appeals for the Fourth Circuit (the Court). The 
Motion identified those provisions of the February 22, 2018 rulemaking 
affected by South Coast II and requested that the Court vacate and 
remand the February 22, 2018 rulemaking to EPA. In a November 14, 2018 
Order, the Court granted EPA's unopposed request for a voluntary remand 
and vacatur (the Order) and entered a judgment that its remand would 
not take effect until the Court issued its mandate in accordance with 
Fed. R. App. P. 41 (the Judgment). The Court issued its mandate on 
January 7, 2019 (the Mandate), announcing that the judgment of the 
Court would take effect that day.\4\ Therefore, on January 7, 2019, the 
judgment of the Court vacated and remanded EPA's February 22, 2018 
final rulemaking to EPA, thereby restoring the Virginia SIP to the 
version that existed prior to the effective date of EPA's February 22, 
2018 rulemaking. That version of the SIP contains the versions of 
9VAC5-20-204, 9VAC5-30-55, 9VAC5-151-20, and 9VAC5-160-30 as they 
existed prior to the March 26, 2018 effective date of EPA's February 
22, 2018 final action.\5\
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    \4\ The Motion, the Order, the Judgment and the Mandate are 
included in the docket for this rulemaking action available at 
www.regulations.gov, Docket ID Number EPA-R03-OAR-2017-0382.
    \5\ On February 27, 2019, Virginia formally withdrew Revision 
G16, which formed the based of EPA's February 22, 2018 rulamking. 
Consequently, no portion of Revision G16 remains before EPA.
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    In this action, EPA is correcting the codification of the Virginia 
SIP in the CFR, to reflect the vacatur of EPA's February 22, 2018 final 
rulemaking. This action corrects the CFR to be consistent with the 
Court's Judgement by removing the revisions to 9VAC5-20-204, 9VAC5-30-
55, 9VAC5-151-20, and 9VAC5-160-30 that were approved in EPA's now 
vacated February 22, 2018 final action. By taking this final action, 
the CFR will correctly display the versions of 9VAC5-20-204, 9VAC5-30-
55, 9VAC5-151-20, and 9VAC5-160-30 that are approved in the Virginia 
SIP (i.e. the version of the provisions that were approved into the 
Virginia SIP prior to the March 26, 2018 effective date of EPA's 
February 22, 2018 final rulemaking).

II. Final Action

    EPA is correcting the codification of the Virginia SIP in the CFR 
to reflect the vacatur of EPA's February 22, 2018 final action. EPA is 
taking this action as a final rule without providing an opportunity for 
public comment or a public hearing because EPA finds that the 
Administrative Procedure Act (APA) good cause exemption applies. In 
general, the APA requires that general notice of proposed rulemaking 
shall be published in the Federal Register. Such notice must provide an 
opportunity for public participation in the rulemaking process. 
However, the APA also provides a way for an agency to directly issue a 
final rulemaking in certain specific instances. This may occur, in 
particular, when an agency for good cause finds (and incorporates the 
finding and a brief statement of reasons in the rule issued) that 
notice and public procedure thereon are impracticable, unnecessary, or 
contrary to the public interest. See 5 U.S.C. 553(b)(3)(B). EPA has 
determined that it is not necessary to provide a public hearing or an 
opportunity for public comment on this action because the correction of 
the CFR to reflect the vacatur of EPA's February 22, 2018 final action 
is a necessary ministerial act. The Court, through its Order 
referencing the Motion, specifically identified as vacated the 
revisions to the Virginia SIP

[[Page 56944]]

that this action removes from display in the CFR and remanded this 
matter to EPA. Therefore, removing the affected regulatory text simply 
implements the decision of the Court, and it would serve no useful 
purpose to provide an opportunity for public comment or a public 
hearing on this issue.
    In addition, notice-and-comment would be contrary to the public 
interest because it would unnecessarily delay the correction of the 
Virginia SIP as displayed in the CFR. Such delay could result in 
confusion on the part of the regulated industry and state, local, and 
tribal air agencies on the actual SIP-approved provisions in the 
Virginia SIP.
    For these reasons, EPA finds good cause to issue a final rulemaking 
pursuant to section 553 of the APA, 5 U.S.C. 553(b)(3)(B). Moreover, 
EPA finds that the problems outlined above regarding the effects of 
delaying issuance of the rule also provide good cause for not delaying 
its effective date. 5 U.S.C. 553(d)(3). Accordingly, the requirement 
for a delay in effective date does not apply and the rule will take 
effect upon publication in the Federal Register. 5 U.S.C. 553(d).

III. General Information Pertaining to SIP Submittals From the 
Commonwealth of Virginia

    In 1995, Virginia adopted legislation that provides, subject to 
certain conditions, for an environmental assessment (audit) 
``privilege'' for voluntary compliance evaluations performed by a 
regulated entity. The legislation further addresses the relative burden 
of proof for parties either asserting the privilege or seeking 
disclosure of documents for which the privilege is claimed. Virginia's 
legislation also provides, subject to certain conditions, for a penalty 
waiver for violations of environmental laws when a regulated entity 
discovers such violations pursuant to a voluntary compliance evaluation 
and voluntarily discloses such violations to the Commonwealth and takes 
prompt and appropriate measures to remedy the violations. Virginia's 
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and 
information about the content of those documents that are the product 
of a voluntary environmental assessment. The Privilege Law does not 
extend to documents or information that: (1) Are generated or developed 
before the commencement of a voluntary environmental assessment; (2) 
are prepared independently of the assessment process; (3) demonstrate a 
clear, imminent and substantial danger to the public health or 
environment; or (4) are required by law.
    On January 12, 1998, the Commonwealth of Virginia Office of the 
Attorney General provided a legal opinion that states that the 
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege 
to documents and information ``required by law,'' including documents 
and information ``required by Federal law to maintain program 
delegation, authorization or approval,'' since Virginia must ``enforce 
Federally authorized environmental programs in a manner that is no less 
stringent than their Federal counterparts. . . .'' The opinion 
concludes that ``[r]egarding Sec.  10.1-1198, therefore, documents or 
other information needed for civil or criminal enforcement under one of 
these programs could not be privileged because such documents and 
information are essential to pursuing enforcement in a manner required 
by Federal law to maintain program delegation, authorization or 
approval.''
    Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that 
``[t]o the extent consistent with requirements imposed by Federal 
law,'' any person making a voluntary disclosure of information to a 
state agency regarding a violation of an environmental statute, 
regulation, permit, or administrative order is granted immunity from 
administrative or civil penalty. The Attorney General's January 12, 
1998 opinion states that the quoted language renders this statute 
inapplicable to enforcement of any Federally authorized programs, since 
``no immunity could be afforded from administrative, civil, or criminal 
penalties because granting such immunity would not be consistent with 
Federal law, which is one of the criteria for immunity.''
    Therefore, EPA has determined that Virginia's Privilege and 
Immunity statutes will not preclude the Commonwealth from enforcing its 
program consistent with the Federal requirements. In any event, because 
EPA has also determined that a state audit privilege and immunity law 
can affect only state enforcement and cannot have any impact on Federal 
enforcement authorities, EPA may at any time invoke its authority under 
the CAA, including, for example, sections 113, 167, 205, 211 or 213, to 
enforce the requirements or prohibitions of the state plan, 
independently of any state enforcement effort. In addition, citizen 
enforcement under section 304 of the CAA is likewise unaffected by 
this, or any, state audit privilege or immunity law.

IV. Statutory and Executive Order Reviews

A. General Requirements

    This action merely makes ministerial corrections to the SIP 
consistent with state law that EPA had previously approved 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 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

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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 December 23, 2019. 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 correcting the Virginia SIP to reflect the vacatur 
of EPA's February 22, 2018 final rule 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: October 11, 2019.
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 to 
read as follows:


Sec.  52.2420   Identification of plan.

* * * * *
    (c) * * *

                                 EPA-Approved Virginia Regulations and Statutes
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                                                                                                 Explanation
          State citation              Title/subject          State       EPA approval date       [former SIP
                                                        effective 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         3/11/15  8/14/15, 80 FR       List of
                                                                         48730.               nonattainment
                                                                                              areas revised to
                                                                                              exclude Northern
                                                                                              Virginia
                                                                                              localities for
                                                                                              fine particulate
                                                                                              matter (PM2.5).
 
                                                  * * * * * * *
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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        11/21/12  6/11/13, 78 FR       The 1997 8-hour
                                    ppm).                                34915.               ozone NAAQS for
                                                                                              purposes of
                                                                                              transportation
                                                                                              conformity is
                                                                                              revoked.
 
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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......        12/31/08  11/20/09, 74 FR      ...................
                                                                         60194.
 
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                                     9 VAC 5, Chapter 160 General Conformity
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                                                  * * * * * * *
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                                           Part II General Provisions
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                                                  * * * * * * *
5-160-30.........................  Applicability......          3/2/11  12/12/11, 76 FR      ...................
                                                                         77150.
 
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[FR Doc. 2019-23133 Filed 10-23-19; 8:45 am]
 BILLING CODE 6560-50-P