[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
[[Page 29327]]
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]
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