[Federal Register Volume 83, Number 174 (Friday, September 7, 2018)]
[Rules and Regulations]
[Pages 45351-45356]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-19364]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2017-0399; FRL-9983-33--Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Nonattainment New Source Review Requirements for the 2008 8-
Hour Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a 
revision to the Commonwealth of Virginia's state implementation plan 
(SIP). The revision is in response to EPA's February 3, 2017 Findings 
of Failure to Submit for various requirements relating to the 2008 8-
hour ozone national ambient air quality standards (NAAQS). This SIP 
revision is specific to nonattainment new source review (NNSR) 
requirements. EPA is approving this revision in accordance with the 
requirements of the Clean Air Act (CAA).

DATES: This final rule is effective on October 9, 2018.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2017-0399. 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 
http://www.regulations.gov, or please contact the person identified in 
the FOR FURTHER INFORMATION CONTACT section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: David Talley, (215) 814-2117, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On April 4, 2018 (83 FR 14386), EPA published a notice of proposed 
rulemaking (NPR) for the Commonwealth of Virginia. In the NPR, EPA 
proposed approval of the SIP submitted in response to EPA's final 2008 
8-hour ozone NAAQS Findings of Failure to Submit for NNSR requirements. 
See 82 FR 9158 (February 3, 2017). Specifically, Virginia is certifying 
that its existing NNSR program, covering the Washington, DC 
nonattainment area (which includes Alexandria City, Arlington County, 
Fairfax County, Fairfax City, Falls Church City, Loudoun County, 
Manassas City, Manassas Park City, and Prince William County in 
Virginia) (hereafter, Washington, DC Nonattainment Area) for the 2008 
8-hour ozone NAAQS, is at least as stringent as the requirements at 40 
CFR 51.165, as amended by the final rule entitled ``Implementation of 
the 2008 National Ambient Air Quality Standards for Ozone: State 
Implementation Plan Requirements'' (SIP Requirements Rule),

[[Page 45352]]

for ozone and its precursors.\1\ See 80 FR 12264 (March 6, 2015). The 
formal SIP revision was submitted by the Virginia Department of 
Environmental Quality (VADEQ) on behalf of the Commonwealth of Virginia 
on May 11, 2017.
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    \1\ The SIP Requirements Rule addresses a range of nonattainment 
area SIP requirements for the 2008 8-hour ozone NAAQS, including 
requirements pertaining to attainment demonstrations, reasonable 
further progress (RFP), reasonably available control technology, 
reasonably available control measures, major new source review, 
emission inventories, and the timing of SIP submissions and of 
compliance with emission control measures in the SIP. The rule also 
revokes the 1997 ozone NAAQS and establishes anti-backsliding 
requirements. On February 16, 2018, the United States Court of 
Appeals for the District of Columbia Circuit (D.C. Circuit) issued 
an opinion granting a number of challenges to the EPA's SIP 
Requirements Rule. South Coast Air Quality Mgmt. Dist. v. EPA, 882 
F.3d 1138 (D.C. Cir. 2018). Specifically, as relevant here, the 
Court vacated the ``redesignation substitute'' provision in the 
implementation rule, which allowed states a way to satisfy anti-
backsliding requirements for revoked standards. EPA and South Coast 
Air Quality Management District filed petitions for rehearing and 
those petitions are pending before the Court.
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    On March 12, 2008, EPA promulgated a revised 8-hour ozone NAAQS of 
0.075 parts per million (ppm). See 73 FR 16436 (March 27, 2008). Under 
EPA's regulations at 40 CFR 50.15, the 2008 8-hour ozone NAAQS is 
attained when the three-year average of the annual fourth-highest daily 
maximum 8-hour average ambient air quality ozone concentration is less 
than or equal to 0.075 ppm.
    Upon promulgation of a new or revised NAAQS, the CAA requires EPA 
to designate as nonattainment any area that is violating the NAAQS 
based on the three most recent years of ambient air quality data 
available at the conclusion of the designation process. The Washington, 
DC Nonattainment Area was classified as a marginal nonattainment area 
for the 2008 8-hour ozone NAAQS on May 21, 2012 (effective July 20, 
2012) using 2008-2010 ambient air quality data. See 77 FR 30088. On 
March 6, 2015, EPA issued the final SIP Requirements Rule, which 
establishes the requirements that state, tribal, and local air quality 
management agencies must meet as they develop implementation plans for 
areas where air quality exceeds the 2008 8-hour ozone NAAQS. See 80 FR 
12264. Areas that were designated as marginal ozone nonattainment areas 
were required to attain the 2008 8-hour ozone NAAQS no later than July 
20, 2015, based on 2012-2014 monitoring data. The Washington, DC 
Nonattainment Area did not attain the 2008 8-hour ozone NAAQS by July 
20, 2015; however, this area did meet the CAA section 181(a)(5) 
criteria, as interpreted in 40 CFR 51.1107, for a one-year attainment 
date extension. See 81 FR 26697 (May 4, 2016). Therefore, on April 11, 
2016, the EPA Administrator signed a final rule extending the 
Washington, DC Nonattainment Area 2008 8-hour ozone NAAQS attainment 
date from July 20, 2015 to July 20, 2016.\2\
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    \2\ EPA finalized approval of a Determination of Attainment 
(DOA) for the 2008 8-hour ozone NAAQS for the Washington, DC 
Nonattainment Area on November 14, 2017. This final action was based 
on complete, certified, and quality assured ambient air quality 
monitoring data for the 2013-2015 monitoring period. See 82 FR 52651 
(November 14, 2017). It should be noted that a DOA does not 
alleviate the need for Virginia to certify that their existing SIP 
approved NNSR program is as stringent as the requirements at 40 CFR 
51.165, as NNSR applies in nonattainment areas until an area has 
been redesignated to attainment.
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    Based on initial nonattainment designations for the 2008 8-hour 
ozone standard, as well as the March 6, 2015 final SIP Requirements 
Rule, Virginia was required to develop a SIP revision addressing 
certain CAA requirements for the Washington, DC Nonattainment Area, and 
submit to EPA a NNSR Certification SIP or SIP revision no later than 36 
months after the effective date of area designations for the 2008 8-
hour ozone NAAQS (i.e., July 20, 2015).\3\ See 80 FR 12264 (March 6, 
2015). EPA is proposing to approve Virginia's May 11, 2017 NNSR 
Certification SIP revision. EPA's analysis of how this SIP revision 
addresses the NNSR requirements for the 2008 8-hour ozone NAAQS is 
provided in Section II.
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    \3\ Neither Virginia's obligation to submit the NNSR 
Certification SIP nor the requirements governing that submission 
were affected by the D.C. Circuit's February 16, 2018 decision on 
portions of the SIP Requirements Rule in South Coast Air Quality 
Mgmt. Dist. v. EPA.
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II. Summary of SIP Revision and EPA Analysis

    This rulemaking action is specific to Virginia's NNSR requirements. 
NNSR is a preconstruction review permit program that applies to new 
major stationary sources or major modifications at existing sources 
located in a nonattainment area.\4\ The specific NNSR requirements for 
the 2008 8-hour ozone NAAQS are located in 40 CFR 51.160-165. As set 
forth in the SIP Requirements Rule, for each nonattainment area, a NNSR 
plan or plan revision was due no later than 36 months after the 
effective date of area designations for the 2008 8-hour ozone standard 
(i.e., July 20, 2015).\5\
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    \4\ See CAA sections 172(c)(5), 173 and 182.
    \5\ With respect to states with nonattainment areas subject to a 
finding of failure to submit NNSR SIP revisions, such revisions 
would no longer be required if the area were redesignated to 
attainment. The CAA's prevention of significant deterioration (PSD) 
program requirements apply in lieu of NNSR after an area is 
redesignated to attainment. For areas outside the OTR, NNSR 
requirements do not apply in areas designated as attainment.
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    The minimum SIP requirements for NNSR permitting programs for the 
2008 8-hour ozone NAAQS are located in 40 CFR 51.165. See 40 CFR 
51.1114. These NNSR program requirements include those promulgated in 
the ``Phase 2 Rule'' implementing the 1997 8-hour ozone NAAQS (75 FR 
71018 (November 29, 2005)) and the SIP Requirements Rule implementing 
the 2008 8-hour ozone NAAQS. Under the Phase 2 Rule, the SIP for each 
ozone nonattainment area must contain NNSR provisions that: Set major 
source thresholds for oxides of nitrogen (NOX) and volatile 
organic compounds (VOC) pursuant to 40 CFR 51.165(a)(1)(iv)(A)(1)(i)-
(iv) and (2); classify physical changes as a major source if the change 
would constitute a major source by itself pursuant to 40 CFR 
51.165(a)(1)(iv)(A)(3); consider any significant net emissions increase 
of NOX as a significant net emissions increase for ozone 
pursuant to 40 CFR 51.165(a)(1)(v)(E); consider certain increases of 
VOC emissions in extreme ozone nonattainment areas as a significant net 
emissions increase and a major modification for ozone pursuant to 40 
CFR 51.165(a)(1)(v)(F); set significant emissions rates for VOC and 
NOX as ozone precursors pursuant to 40 CFR 
51.165(a)(1)(x)(A)-(C) and (E); contain provisions for emissions 
reductions credits pursuant to 40 CFR 51.165(a)(3)(ii)(C)(1)-(2); 
provide that the requirements applicable to VOC also apply to 
NOX pursuant to 40 CFR 51.165(a)(8); and set offset ratios 
for VOC and NOX pursuant to 40 CFR 51.165(a)(9)(i)-(iii) 
(renumbered as (a)(9)(ii)-(iv) under the SIP Requirements Rule for the 
2008 8-hour ozone NAAQS). Under the SIP Requirements Rule for the 2008 
8-hour ozone NAAQS, the SIP for each ozone nonattainment area 
designated nonattainment for the 2008 8-hour ozone NAAQS and designated 
nonattainment for the 1997 ozone NAAQS on April 6, 2015, must also 
contain NNSR provisions that include the anti-backsliding requirements 
at 40 CFR 51.1105. See 40 CFR 51.165(a)(12).
    Virginia's SIP-approved NNSR program is implemented through Article 
9, Permits for Major Stationary Sources and Major Modifications 
Locating in Nonattainment Areas or the Ozone Transport Region, in the 
Virginia Administrative Code (VAC), 9VAC5-80--Permits for Stationary 
Sources. In its May 11, 2017 SIP revision, Virginia certifies that the 
version of 9VAC5-80

[[Page 45353]]

in the SIP is at least as stringent as the federal NNSR requirements 
for the Washington, DC Nonattainment Area. EPA last approved revisions 
to Virginia's major NNSR SIP on August 28, 2017. In that action, EPA 
approved revisions to Virginia's SIP which made Virginia's NNSR program 
consistent with federal requirements. Additionally, those revisions 
corrected a deficiency which had been grounds for limited approval of 
Virginia's program. EPA found, therefore, that Virginia's program met 
all CAA requirements and was fully approvable. See 82 FR 40703.
    EPA notes that neither 9VAC5-80 nor Virginia's approved SIP have 
the regulatory provision for any emissions change of VOC in extreme 
nonattainment areas, specified in 40 CFR 51.165(a)(1)(v)(F), because 
Virginia has never had an area designated extreme nonattainment for any 
of the ozone NAAQS. Nonetheless, the Virginia SIP is not required to 
have this requirement for VOC in extreme nonattainment areas until such 
time as Virginia has an extreme ozone nonattainment area. In Virginia's 
May 11, 2017 SIP revision, VADEQ asserted that anti-backsliding 
provisions do not apply to any area within Virginia, including the 
northern Virginia/Metropolitan Washington, DC area, because Virginia 
submitted to EPA a final ``redesignation substitute'' request for the 
1997 ozone NAAQS for the Washington, DC area on April 29, 2016. As 
noted, in its February 16, 2018 decision, the South Coast Court vacated 
the provision in the implementation rule for the 2008 ozone NAAQS that 
created the ``redesignation substitute.'' The Court disagreed with 
EPA's interpretation of the Clean Air Act that once a standard is 
revoked, the Agency no longer has authority to change designations or 
classifications for that revoked standard. The Court ruled that in 
order for 1997 ozone nonattainment areas to be relieved from anti-
backsliding requirements under the old revoked standard, those areas 
would need to seek, and EPA would need to approve, full statutory 
redesignations to attainment in compliance with CAA section 107(d)(3). 
The Court thus vacated the ``redesignation substitute,'' because it 
held that areas could not receive the benefits of a redesignation 
without meeting all of the elements in CAA section 107(d)(3)(E).
    Given the D.C. Circuit's vacatur of the redesignation substitute 
mechanism in South Coast, EPA cannot approve Virginia's redesignation 
substitute request. Therefore, until the Washington, DC Nonattainment 
Area is redesignated under section 107(d)(3), the state remains 
required to comply with the anti-backsliding provisions found in 40 CFR 
51.165(a)(12) and located in 9VAC5-80 of its SIP which applied to NSR 
requirements for the 1997 ozone NAAQS. EPA finds that the Virginia SIP 
presently includes all required major stationary source thresholds and 
emissions offset ratios for NSR purposes which were established for the 
SIP for Virginia's 1997 8-hour ozone NAAQS nonattainment designation. 
See 82 FR 40703 (finding Virginia's NNSR program consistent with all 
federal requirements in August 2017).
    Thus, EPA finds that Virginia's SIP includes relevant and required 
anti-backsliding requirements. Virginia has not changed these major 
stationary source threshold and offset provisions in 9VAC5-80-2010 C, 
and furthermore, they remain in Virginia's federally-approved SIP 
unless and until EPA approves a full redesignation request in 
accordance with CAA section 107.\6\ EPA expects that VADEQ will 
continue to implement its NNSR program consistently with its approved 
SIP for major stationary source thresholds and emission offset ratios.
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    \6\ Under the 1997 8-hour ozone NAAQS, the Washington, DC Area 
was classified as moderate nonattainment.
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    EPA has not amended the SIP provisions related to 9VAC5-80 since 
the August 28, 2017 rulemaking where EPA last approved Virginia's NNSR 
provisions as meeting CAA requirements for a NNSR program. The SIP-
approved version of 9VAC5-80 covers Virginia's portion of the 
Washington, DC Nonattainment Area and remains adequate to meet all 
applicable NNSR requirements for the 2008 8-hour ozone NAAQS in 40 CFR 
51.165, the Phase 2 Rule, and the SIP Requirements Rule.

III. Public Comments and EPA Response

    EPA received a total of sixteen sets of comments on the April 4, 
2018 NPR. Fifteen of those did not concern any of the specific issues 
raised in the NPR, nor did they address EPA's rationale for the 
proposed approval of VADEQ's submittal. Therefore, EPA is not 
responding to those comments. EPA did receive one set of relevant 
comments. Those comments and EPA's responses are discussed in this 
Section. All of the comments received are included in the docket for 
this rulemaking action.
    Comment 1: The commenter asserts that EPA's proposed approval 
failed to adequately address whether Virginia's SIP ensures that the 
CAA's anti-backsliding requirements are met. In support of this claim, 
the commenter first points to Virginia's May 11, 2017 submittal in 
which VADEQ claims that anti-backsliding provisions don't apply because 
Virginia submitted a redesignation substitute request on April 26, 
2016, and asserts that redesignation substitutes were ruled unlawful by 
the D.C. Circuit in the South Coast decision. Second, the commenter 
takes issue with EPA's assertion in the NPR that Virginia's NNSR SIP 
contains all of the requirements necessary to implement the 2008 8-hour 
ozone NAAQS, citing EPA's failure to address a February 18, 2018 
approval action related to the implementation of the 2008 ozone NAAQS 
and the revocation of the 1997 ozone NAAQS.\7\ The commenter asserts 
that until EPA addresses how ``the SIP as a whole,'' (including the 
revisions from EPA's February 18, 2018 approval) meets the anti-
backsliding requirements, approval of Virginia's May 17, 2017 submittal 
would be arbitrary and unlawful.
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    \7\ See 83 FR 7610.
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    EPA Response 1: The anti-backsliding requirements at both 40 CFR 
51.165(a)(12) and 51.1105 provide that the minimum SIP elements for 
NNSR outlined at 40 CFR 51.165 continue to apply in areas designated as 
nonattainment for the 1997 ozone NAAQS that had not been redesignated 
to attainment by EPA prior to the April 6, 2015 revocation date of the 
1997 NAAQS. EPA agrees with the commenter that VADEQ's assertion that 
the April 26, 2016 redesignation substitute request relieves Virginia 
of the CAA's anti-backsliding requirements is not correct, first 
because EPA never acted on that request and second because even if the 
Agency had approved such request, the South Coast Court held that 
redesignation substitutes cannot relieve nonattainment areas of anti-
backsliding requirements. EPA clearly and unambiguously stated in the 
NPR (and restated in Section II of this document): ``Virginia remains 
required to comply with the anti-backsliding provisions found in 40 CFR 
51.165(a)(12) and located in 9VAC5-80 of its SIP which applied to NSR 
requirements for the 1997 ozone NAAQS.'' \8\ EPA further stated that 
Virginia is expected to implement its NNSR program consistent with its 
approved SIP (which does contain the CAA's anti-backsliding 
requirements) unless and until EPA promulgates a full redesignation of 
the DC Area for the

[[Page 45354]]

2008 ozone NAAQS in accordance with CAA section 107(d)(3).
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    \8\ See 83 FR 14388
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    With respect to the commenter's assertion that EPA must evaluate 
the SIP as a whole and in light of the February 18, 2018 approval 
action, in order to grant approval to Virginia's May 17, 2017 
submittal, EPA disagrees. EPA clearly stated in the NPR, and reiterates 
in this action, this action is specific to the NNSR program 
requirements of 40 CFR 51.165, which are codified by Virginia under 
Article 9 of 9VAC5-80. EPA's February 18, 2018 approval action did not 
revise or address any of the NNSR requirements in 9VAC5-80 and is 
therefore irrelevant to this action. EPA is not obligated, when 
reviewing each SIP submission, to re-review all prior SIP submissions 
already acted on. Such an interpretation of the CAA would subject the 
Agency to never-ending review of the state's implementation plan.
    The February 18, 2018 action approved revisions to 9VAC5-20-204, 
9VAC5-30-55, 9VAC5-151-20, and 9VAC5-160-30. The amendment to 9VAC5-30-
55 added text stating that the primary and secondary ambient air 
quality standard of 0.08 ppm shall no longer apply after April 6, 2015, 
consistent with EPA's revocation of the 1997 standard. The revisions to 
9VAC5-151-20 and 9VAC5-160-30 were related to transportation conformity 
and general conformity, neither of which are germane to this action. 
Subdivision (A)(2) of 9VAC5-20-204 defines and classifies the 
nonattainment area for the 1997 ozone standard. EPA's February 18, 2018 
final rulemaking action approved a revision to 9VAC5-20-204 which 
provided that subdivision (A)(2) would no longer be effective after 
April 6, 2015. This is appropriate given the revocation of the 1997 
standard. It is important to note that subdivision (A)(2) was not 
removed. Pursuant to 9VAC5-80-2000(B), the NNSR requirements of Article 
9 apply to ``. . . nonattainment areas designated in 9VAC5-20-204 . . 
.'' This is the mechanism through which Virginia's NNSR requirements 
are applied to the various nonattainment areas in the Commonwealth. 
While the nonattainment area status for the 1997 ozone NAAQS is no 
longer active or ``effective'' due to the fact that that standard has 
been revoked, the only ``designation'' and ``classification'' that 
applies to the Washington DC Nonattainment Area for purposes of the 
revoked 1997 ozone NAAQS, and specifically for purposes of establishing 
the NNSR preconstruction permitting requirements of Article 9, remain 
on the books at 9VAC5-20-204. Therefore, even if the February 18, 2018 
action might require amendment in light of South Coast, such a revision 
would not impact the effectiveness of EPA's final action approving 
Virginia's NNSR SIP.
    Comment 2: The commenter asserts that EPA's proposed approval fails 
to ensure compliance with certain other NNSR requirements in 40 CFR 
51.165(a)(1)(v)(E), specifically the requirement that any significant 
net emissions increase of nitrogen oxides (NOX) be 
considered significant for ozone. The commenter points to part b. of 
the definition of ``Major modification'' in 9VAC5-80-2010 which states: 
``[a]ny significant emissions increase from any emissions units or net 
emissions increase at a source that is considered significant for 
volatile organic compounds shall be considered significant for ozone,'' 
and claims that the lack of similar language pertaining to 
NOX creates ambiguity as to whether the requirements of 40 
CFR 51.165(a)(1)(v)(E) are met.
    EPA Response 2: EPA disagrees that there is any ambiguity in 
Virginia's NNSR SIP with regard to the potential for a significant net 
increase of NOX to be considered significant for ozone. The 
language identified by the commenter in part b. of the definition of 
``Major modification'' in 9VAC5-80-2010 that is specific to volatile 
organic compounds is simply a recitation of nearly identical language 
in 40 CFR 51.165(a)(1)(v)(B) which is also specific to volatile organic 
compounds and has no implications with regard to NOX. 
Virginia's May 17, 2017 submittal identified the provisions of the SIP 
which satisfy the requirement of 40 CFR 51.165(a)(1)(v)(E). First, 
under the definition of ``regulated NSR pollutant'' at 9VAC5-80-2010C, 
subdivisions a. and c.(1) include NOX and make clear that 
NOX is regulated as a precursor to ozone.\9\ Additionally, 
subdivisions a. and c. of the definition of ``Significant'' contain the 
appropriate significance thresholds for NOX (40 tons per 
year (tpy), or 25 tpy in areas designated as serious or severe 
nonattainment). Finally, part a. of the definition of ``Major 
modification'' in 9VAC5-80-2010 states that a major modification means 
``any physical change in or change in the method of operation of a 
major stationary source that would result in (i) a significant 
emissions increase of a regulated NSR pollutant; and (ii) a significant 
net emissions increase of that pollutant from the source.'' (emphasis 
added) Because NOX is clearly included in the definition of 
a ``Regulated NSR Pollutant,'' a significant emissions increase and a 
significant net emissions increase of NOX would meet the 
definition of ``Major Modification,'' thus satisfying the requirement 
of 40 CFR 51.165(a)(1)(v)(E).
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    \9\ 9VAC5-80-2010C in pertinent part reads as follows: ` 
``Regulated NSR Pollutant' means any of the following: a. Nitrogen 
oxides or any volatile organic compound. . . . c. . . . . Precursors 
identified for purposes of this article shall be the following: (1) 
(1) Volatile organic compounds and nitrogen oxides are precursors to 
ozone in all ozone nonattainment areas.''
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IV. Final Action

    EPA is approving Virginia's May 17, 2017 SIP revision addressing 
the NNSR requirements for the 2008 ozone NAAQS for the Washington DC 
Nonattainment Area. EPA has concluded that the State's submission 
fulfills the 40 CFR 51.1114 revision requirement, meets the 
requirements of CAA sections 110 and 172 and the minimum SIP 
requirements of 40 CFR 51.165, as well as its obligations under EPA's 
February 3, 2017 Findings of Failure to Submit. See 82 FR 9158.

V. 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.

[[Page 45355]]

    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 
NSR 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.

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);
     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 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 November 6, 2018. 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 pertaining to Virginia's NNSR program and the 2008 
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, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: August 27, 2018.
Cecil Rodrigues,
Acting Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

[[Page 45356]]

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. Amend Sec.  52.2420, paragraph (e)(1) table by adding an entry 
entitled ``2008 8-Hour Ozone NAAQS Nonattainment New Source Review 
Requirements'' at the end of the table to read as follows:


Sec.  52.2420   Identification of plan.

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

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                   State
 Name of non-regulatory SIP revision          Applicable geographic area         submittal      EPA approval date           Additional explanation
                                                                                    date
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
2008 8-Hour Ozone NAAQS Nonattainment  Virginia portion of the Washington, DC-      5/17/17  9/7/17, [Insert Federal  ..................................
 New Source Review Requirements.        MD-VA nonattainment area for the 2008                 Register citation].
                                        ozone NAAQS (i.e., Arlington County,
                                        Fairfax County, Loudoun County, Prince
                                        William County, Alexandria City,
                                        Fairfax City, Falls Church City,
                                        Manassas City, and Manassas Park City)
                                        as well as the portions of Virginia
                                        included in the Ozone Transport Region
                                        (OTR) (i.e., Arlington County, Fairfax
                                        County, Loudoun County, Prince William
                                        County, Stafford County, Alexandria
                                        City, Fairfax City, Falls Church City,
                                        Manassas City, and Manassas Park City).
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2018-19364 Filed 9-6-18; 8:45 am]
 BILLING CODE 6560-50-P


