[Federal Register Volume 85, Number 27 (Monday, February 10, 2020)]
[Proposed Rules]
[Pages 7496-7499]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-02503]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2019-0694; FRL-10005-12-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Emissions Statement Certification for the 2015 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), a state's SIP 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). The SIP revision provides Virginia's certification 
that its existing emissions statement program satisfies the emissions 
statement requirements of the CAA for the 2015 ozone National Ambient 
Air Quality Standard (NAAQS). EPA is proposing to approve Virginia's 
emissions statement program certification for the 2015 ozone NAAQS as a 
SIP revision in accordance with the requirements of the CAA.

DATES: Written comments must be received on or before March 11, 2020.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2019-0694 at https://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 https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Erin Malone, 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) 814-2190.

[[Page 7497]]

Ms. Malone can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    Under the CAA, EPA establishes NAAQS for criteria pollutants 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 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. See 73 FR 
16436 (March 27, 2008). In 2015, EPA further refined the 8-hour ozone 
NAAQS from 0.075 ppm to 0.070 ppm. The 0.070 ppm standard is referred 
to as the 2015 ozone NAAQS. See 80 FR 65452 (October 26, 2015).
    On June 4, 2018 and July 25, 2018, EPA designated nonattainment 
areas for the 2015 ozone NAAQS. 83 FR 25776 and 83 FR 35136. Effective 
August 3, 2018, the Washington, DC-MD-VA area was designated as 
marginal nonattainment for the 2015 ozone NAAQS. The Virginia portion 
of the Washington, DC-MD-VA nonattainment area comprises Arlington 
County, Fairfax County, Loudoun County, Prince William County, 
Alexandria City, Fairfax City, Falls Church City, Manassas City, and 
Manassas Park City, Virginia. See 40 CFR 81.347.
    Section 182 of the CAA identifies plan submissions and requirements 
for ozone nonattainment areas. Specifically, section 182(a)(3)(B) 
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 ozone nonattainment areas 
must annually report the actual emissions of NOX and VOC to 
the state. However, states may waive this requirement for sources that 
emit under 25 tons per year (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).
    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 December 6, 2018, 
EPA issued a final rule addressing a range of nonattainment area SIP 
requirements for the 2015 ozone NAAQS, including the emission statement 
requirements of CAA section 182(a)(3)(B) (2018 final rule). 83 FR 
62998, codified at 40 CFR part 51, subpart CC. 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 2018 final 
rule, the source emissions statement requirement also applies to all 
areas designated nonattainment for the 2015 ozone NAAQS. 83 FR 62998, 
63023.
    According to the preamble to EPA's 2018 final rule, most areas that 
are required to have an emissions statement program for the 2015 ozone 
NAAQS already have one in place due to a nonattainment designation for 
an earlier ozone NAAQS. 83 FR 62998, 63001. EPA's 2018 final rule 
states that, ``Many air agencies already have regulations in place to 
address certain nonattainment area planning requirements due to 
nonattainment designations for a prior ozone NAAQS. Air agencies should 
review any existing regulation that was previously approved by the EPA 
to determine whether it is sufficient to fulfill obligations triggered 
by the revised ozone NAAQS.'' Id. In cases where an existing emissions 
statement rule is still adequate to meet the emissions statement 
requirement under the 2015 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). 83 FR 62998, 63002. 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. Id.
    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 Virginia's portion of the Washington, 
DC-MD-VA nonattainment area for the 2015 ozone NAAQS.

II. Summary of SIP Revision and EPA Analysis

    On July 30, 2019, 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 2015 
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).\1\ 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

[[Page 7498]]

previous calendar year.\2\ 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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    \1\ 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.
    \2\ 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 emission statements requirements of CAA 
section 182(a)(3)(B) for stationary sources located in nonattainment 
areas in Virginia, including such sources in the Virginia portion of 
the Washington, DC-MD-VA nonattainment area, for the 2015 ozone NAAQS. 
Pursuant to CAA section 182, Virginia is required to have an emissions 
statement program for sources located in nonattainment areas. EPA finds 
the provisions under 9VAC5-20-160 satisfy the requirements of CAA 
section 182(a)(3)(B) for the 2015 ozone NAAQS because they apply to the 
Northern Virginia Emissions Control Area, which includes the Virginia 
portion of the Washington, DC-MD-VA 2015 ozone NAAQS nonattainment area 
(i.e. Arlington County, Fairfax County, Loudoun County, Prince William 
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 section 182(a)(3)(B)(ii). 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(a)(3)(B)(ii). As previously mentioned, per CAA section 
182(a)(3)(B)(ii), states may waive this requirement for 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 provides emissions 
inventories for nonattainment areas as required by CAA section 
172(c)(3).\3\ 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 2015 ozone 
NAAQS. EPA is proposing to approve, as a SIP revision, the Commonwealth 
of Virginia's July 30, 2019 emissions statement program certification 
for the 2015 ozone NAAQS as approvable under CAA section 182(a)(3)(B).
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    \3\ 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 July 30, 2019, which certifies that Virginia's 
existing SIP-approved emissions statement program under 9VAC5-20-160 
satisfies the requirements of the CAA section 182(a)(3)(B) for the 2015 
ozone NAAQS. EPA is soliciting public comments on the issues discussed 
in this document. These comments will be considered before taking final 
action.

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 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

[[Page 7499]]

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 EPA 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).
    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 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 2015 
ozone NAAQS 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compounds.

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

    Dated: January 28, 2020.
Cosmo Servidio,
Regional Administrator, Region III.
[FR Doc. 2020-02503 Filed 2-7-20; 8:45 am]
 BILLING CODE 6560-50-P