
[Federal Register Volume 81, Number 158 (Tuesday, August 16, 2016)]
[Rules and Regulations]
[Pages 54506-54510]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-19388]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2016-0210; FRL-9950-71-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Case-by-Case Reasonably Available Control Technology for the 
2008 8-Hour Ozone National Ambient Air Quality Standard (NAAQS)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking direct 
final action to approve a revision to the Commonwealth of Virginia's 
state implementation plan (SIP). The SIP revision includes revised 
Virginia regulations which incorporate compliance dates necessary for 
implementing planning requirements for the 2008 8-hour ozone national 
ambient air quality standard (NAAQS). Specifically, the SIP revision 
includes revised Virginia regulations which added notification and 
compliance dates for sources seeking case-by-case reasonably available 
control technology (RACT) determinations required under the 2008 8-hour 
ozone NAAQS. EPA is approving this revision to the Virginia SIP in 
accordance with the requirements of the Clean Air Act (CAA).

DATES: This rule is effective on October 17, 2016 without further 
notice, unless EPA receives adverse written comment by September 15, 
2016. If EPA receives such comments, it will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2016-0210 at http://www.regulations.gov, or via email to 
fernandez.cristina@epa.gov. 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, the 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. The 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 http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Leslie Jones Doherty, (215) 814-3409, 
or by email at jones.leslie@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    On February 5, 2016, the Commonwealth of Virginia, through the 
Virginia Department of Environmental Quality (VADEQ), submitted a 
formal revision to the Virginia SIP. The SIP revision submittal 
includes revised provisions within 9VAC5 Chapter 40, Existing 
Stationary Sources, to include revised notification and compliance 
dates for sources subject to RACT for the 2008 8-hour ozone NAAQS to 
submit a case-by-case RACT demonstration to VADEQ.
    On March 27, 2008, EPA revised the 8-hour ozone standard to a new 
0.075

[[Page 54507]]

parts per million (ppm) level (73 FR 16436). On May 21, 2012, EPA 
finalized designations for the 2008 8-hour ozone NAAQS (77 FR 30087) in 
which the Washington, DC-MD-VA area was designated marginal 
nonattainment. See 40 CFR 81.347. The northern portion of Virginia is 
also part of the Metropolitan Statistical Area of the District Columbia 
which is in the ozone transport region (OTR) established under section 
184(a) of the CAA. Pursuant to section 184(b) of the CAA, all areas in 
the OTR must comply with the CAA requirements for a moderate 
nonattainment area which includes RACT requirements. On March 6, 2015, 
EPA published a final implementation rule (80 FR 12264) which specifies 
the compliance date (January 1, 2017) by which RACT measures must be 
implemented for the 2008 8-hour ozone NAAQS. See 40 CFR 51.1112. Thus, 
the northern portion of Virginia which is within the OTR must implement 
RACT per CAA sections 172 and 182 for major stationary sources of 
nitrogen oxides (NOX) and volatile organic compounds 
(VOCs).\1\
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    \1\ Any stationary source which emits or has the potential to 
emit at least 50 tons per year (tpy) of VOCs or 100 tpy of 
NOX shall be considered a major stationary source subject 
to attainment planning requirements, including RACT, as if the area 
were a moderate nonattainment area. See CAA sections 182(b) and (f), 
184(b), and 302.
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II. Summary of SIP Revision

    This SIP revision includes revised 9VAC5-40-7400 and 9VAC5-40-7420 
which incorporate EPA's compliance date for implementation of RACT 
requirements for the 2008 8-hour ozone NAAQS (i.e., January 1, 2017) 
into VADEQ's regulations. The SIP revision consists of amended versions 
of 9VAC5-40-7400 and 9VAC5-40-7420, which were previously included in 
the Virginia SIP, to add notification and compliance dates for RACT 
case-by-case determinations to meet CAA deadlines for implementing RACT 
for major stationary sources of NOX and VOC within Virginia 
for the 2008 8-hour ozone NAAQS. These provisions now include the RACT 
compliance date stated in EPA's implementation rule for the 2008 8-hour 
ozone NAAQS. The notification date included in the Virginia regulations 
is the date by which facilities subject to RACT for the 2008 ozone 
NAAQS must notify the State Air Pollution Control Board of their 
applicability status, commit to making a RACT determination, and 
provide an acceptable schedule for implementing the proposed RACT 
determination so the source achieves compliance with the RACT emission 
standard as expeditiously as possible, but no later than the compliance 
date of January 1, 2017 as required by CAA.
    Specifically, in section 9VAC5-40-7400, pertaining to stationary 
sources of VOCs, Table 4-51B was amended to add the 2008 8-hour ozone 
standard, emissions control area, source threshold limit in tpy which 
subjects sources to VOC RACT, date for submission of notification to 
VADEQ, and the compliance date to implement RACT. Table 1, in this 
rulemaking action, describes Table 4-51B, Notification and Compliance 
Dates for Facilities Located in VOC Emissions Control Areas.

        Table 1--Notification and Compliance Dates for Facilities Located in VOC Emissions Control Areas
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                                   Emissions control
            Standard                     area          Source threshold    Notification date    Compliance date
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1997 (0.08 ppm).................  Northern Virginia.  >=50 tpy..........  March 1, 2007.....  April 1, 2009.
2008 (0.075 ppm)................  Northern Virginia.  >=50 tpy..........  February 1, 2016..  January 1, 2017.
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    In section 9VAC5-40-7420, pertaining to stationary sources of 
NOX, Table 4-51E and Table 4-51F were amended to include the 
2008 8-hour ozone standard, emissions control area, source threshold 
limit in tpy which subjects sources to NOX RACT, date for 
submission of notification to VADEQ, and compliance date to implement 
RACT. Table 2, of this rulemaking action, describes Table 4-51E for 
facilities in an emission control area where there is no applicable 
presumptive RACT. Table 3, of this rulemaking action describes Table 4-
51F which pertains to facilities in an emission control area where 
presumptive RACT is defined or applicable.

Table 2--Notification and Compliance Dates for Facilities Located in NOX Emissions Control Areas for Which There
                                             Is No Presumptive RACT
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                                   Emissions control
            Standard                     area          Source threshold    Notification date    Compliance date
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1997 (0.08 ppm).................  Northern Virginia.  >=100 tpy.........  March 1, 2007.....  April 1, 2009
2008 (0.075 ppm)................  Northern Virginia.  >=100 tpy.........  February 1, 2016..  January 1, 2017
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   Table 3--Notification and Compliance Dates for Facilities Located in NOX Emissions Control Areas for Which
                                           Presumptive RACT Is Defined
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                                   Emissions control
            Standard                     area          Source threshold    Notification date    Compliance date
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1997 (0.08 ppm).................  Northern Virginia.  >=100 tpy.........  March 1, 2007.....  April 1, 2009
2008 (0.075 ppm)................  Northern Virginia.  >=100 tpy.........  February 1, 2016..  January 1, 2017
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    The amendments to 9VAC5-40-7400 and 9VAC5-40-7420 are consistent 
with the federal requirements for RACT implementation for the 2008 8-
hour ozone NAAQS contained within EPA's final implementation rule for 
this NAAQS and with CAA requirements for RACT in CAA sections 172, 182, 
and 184. See 80 FR 12264.

III. Final Action

    EPA is approving the February 5, 2016 SIP submission from Virginia 
which includes amended Virginia regulations to include notification and

[[Page 54508]]

compliance dates for the submission and implementation of case-by-case 
RACT to address requirements for the 2008 8-hour NAAQS. EPA is 
publishing this rule without prior proposal because EPA views this as a 
noncontroversial amendment and anticipates no adverse comment. However, 
in the ``Proposed Rules'' section of today's Federal Register, EPA is 
publishing a separate document that will serve as the proposal to 
approve the SIP revision if adverse comments are filed. This rule will 
be effective on October 17, 2016 without further notice unless EPA 
receives adverse comment by September 15, 2016. If EPA receives adverse 
comment, EPA will publish a timely withdrawal in the Federal Register 
informing the public that the rule will not take effect. EPA will 
address all public comments in a subsequent final rule based on the 
proposed rule. EPA will not institute a second comment period on this 
action. Any parties interested in commenting must do so at this time. 
Please note that if EPA receives adverse comment on an amendment, 
paragraph, or section of this rule and if that provision may be severed 
from the remainder of the rule, EPA may adopt as final those provisions 
of the rule that are not the subject of an adverse comment.

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. Incorporation by Reference

    In this rulemaking action, the EPA is finalizing regulatory text 
that includes incorporation by reference. In accordance with 
requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by 
reference of VADEQ regulations described in the amendments to 40 CFR 52 
set forth below which added notification and compliance dates for 
sources seeking case-by-case RACT. The EPA has made, and will continue 
to make, these documents generally available electronically through 
www.regulations.gov and/or may be viewed at the appropriate EPA office 
(see the ADDRESSES section of this preamble for more information).

VI. 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);
     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);

[[Page 54509]]

     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 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 October 17, 2016. 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. Parties with objections to this direct final rule are 
encouraged to file a comment in response to the parallel notice of 
proposed rulemaking for this action published in the proposed rules 
section of today's Federal Register, rather than file an immediate 
petition for judicial review of this direct final rule, so that EPA can 
withdraw this direct final rule and address the comment in the proposed 
rulemaking action. This action pertaining to submission and compliance 
dates for case-by-case RACT determinations in Virginia for the 2008 8-
hour 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, Nitrogen dioxide, Ozone, Volatile organic compounds.

    Dated: August 2, 2016.
Shawn M. Garvin,
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 5-40-7400 and 5-40-7420 under 9VAC5, Chapter 
40, Part 2, Article 51 to read as follows:


Sec.  52.2420   Identification of plan.

* * * * *
    (c) * * *

                                 EPA--Approved Virginia Regulations and Statutes
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                                                             State                           Explanation [former
          State citation              Title/subject     effective date   EPA approval date      SIP citation]
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                                                  * * * * * * *
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                            9 VAC 5, Chapter 40 Existing Stationary Sources (Part IV)
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                                                  * * * * * * *
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                                           Part 2 Emissions Standards
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                                                  * * * * * * *
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       Article 51 Stationary Sources Subject to Case-by-Case Control Technology Determinations (Rule 4-51)
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                                                  * * * * * * *
5-40-7400........................  Standard for             12/02/2015  8/16/2016 [Insert    Notification and
                                    volatile organic                     Federal Register     compliance dates
                                    compounds (eight-                    Citation].           added
                                    hour ozone
                                    standard).
 
                                                  * * * * * * *
5-40-7420........................  Standard for             12/02/2015  8/16/2016 [Insert    Notification and
                                    nitrogen oxides                      Federal Register     compliance dates
                                    (eight-hour ozone                    Citation].           added
                                    standard).
 
                                                  * * * * * * *
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[FR Doc. 2016-19388 Filed 8-15-16; 8:45 am]
 BILLING CODE 6560-50-P


