[Federal Register Volume 85, Number 95 (Friday, May 15, 2020)]
[Rules and Regulations]
[Pages 29325-29327]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08743]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2019-0694; FRL-10008-56-Region 3]


Air Plan Approval; Virginia; Emissions Statement Certification 
for the 2015 Ozone National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a state 
implementation plan (SIP) revision submitted by the Commonwealth of 
Virginia (Virginia). The revision provides Virginia's certification 
that its existing emissions statement program satisfies the emissions 
statement requirements of the Clean Air Act (CAA) for the 2015 ozone 
National Ambient Air Quality Standard (NAAQS). EPA is approving 
Virginia's emissions statement program certification for the 2015 ozone 
NAAQS as a SIP revision in accordance with the requirements of the CAA.

DATES: This final rule is effective on June 15, 2020.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2019-0694. 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: 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. Ms. Malone can also be reached 
via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On February 10, 2020 (85 FR 7496), EPA published a notice of 
proposed rulemaking (NPRM) for the Commonwealth of Virginia. In the 
NPRM, EPA proposed approval of Virginia's certification that Virginia's 
emissions statement regulation meets the emissions statement 
requirement of section 182(a)(3)(B) of the CAA for the 2015 ozone 
NAAQS. The formal SIP revision was submitted by Virginia, through the 
Virginia Department of Environmental Quality (VADEQ), on July 30, 2019.

II. Summary of SIP Revision and EPA Analysis

    In Virginia's July 30, 2019 SIP revision 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 tons per year (tpy) of nitrogen oxides 
(NOX) or volatile organic compounds (VOC) must submit 
emissions statements to Virginia while those emitting less than 25 tpy 
must comply with inventory requirements.
    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 emissions statement 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 previously, 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).\1\ Therefore, EPA

[[Page 29326]]

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.
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    \1\ 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. Final Action

    EPA is approving, as a SIP revision, the Commonwealth of Virginia's 
July 30, 2019 emissions statement certification for the 2015 ozone 
NAAQS as approvable under CAA section 182(a)(3)(B). Virginia's 
emissions statement certification certifies that Virginia's existing 
SIP-approved emissions statement program under 9VAC5-20-160 satisfies 
the requirements of CAA section 182(a)(3)(B) for the 2015 ozone NAAQS.

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

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

V. Statutory and Executive Order Reviews

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

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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 July 14, 2020. 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 approving Virginia's emissions statement 
certification for the 2015 ozone NAAQS 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, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: April 17, 2020.
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 (e)(1) is amended by adding 
an entry for ``Emissions Statement Certification for the 2015 Ozone 
National Ambient Air Quality Standard'' at the end of the table to read 
as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (e) * * *
    (1) * * *

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                                                             State
   Name of  non-regulatory  SIP     Applicable geographic  submittal    EPA approval date        Additional
             revision                        area             date                               explanation
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                                                  * * * * * * *
Emissions Statement Certification   Virginia portion of      7/30/19  5/15/20, [insert      Certification that
 for the 2015 Ozone National         the Washington, DC-               Federal Register      Virginia's
 Ambient Air Quality Standard.       MD-VA nonattainment               citation].            previously SIP-
                                     area for the 2015                                       approved
                                     ozone NAAQS (i.e.                                       regulations at
                                     Arlington County,                                       9VAC5-20-160 meet
                                     Fairfax County,                                         the emissions
                                     Loudoun County,                                         statement
                                     Prince William                                          requirements of CAA
                                     County, Alexandria                                      section
                                     City, Fairfax City,                                     182(a)(3)(B) for
                                     Falls Church City,                                      the 2015 ozone
                                     Manassas City, and                                      NAAQS.
                                     Manassas Park City).
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[FR Doc. 2020-08743 Filed 5-14-20; 8:45 am]
 BILLING CODE 6560-50-P