[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]
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