[Federal Register Volume 85, Number 52 (Tuesday, March 17, 2020)]
[Rules and Regulations]
[Pages 15074-15076]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04853]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2019-0162; FRL10006-19-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Infrastructure Requirements 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 formally submitted by the 
Commonwealth of Virginia. Whenever EPA promulgates a new or revised 
national ambient air quality standard (NAAQS or standard), the Clean 
Air Act (CAA) requires states to make SIP submissions to provide for 
the implementation, maintenance, and enforcement of the NAAQS. These 
infrastructure requirements are designed to ensure that the structural 
components of each state's air quality management program are adequate 
to meet the state's responsibilities under the CAA. EPA is approving 
Virginia's submittal addressing the following infrastructure elements, 
or portions thereof, of section 110(a)(2) of the CAA for the 2015 ozone 
NAAQS: CAA section 110(a)(2)(A), (B), (C), (D)(i)(II), (D)(ii), (E), 
(F), (G), (H), (J), (K), (L), and (M). EPA is approving Virginia's 
submittal as a SIP revision in accordance with the requirements of 
section 110(a) of the CAA.

DATES: This final rule is effective on April 16, 2020.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2019-0162. 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: Sara Calcinore, 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-
2043. Ms. Calcinore can also be reached via electronic mail at 
calcinore.sara@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Summary of SIP Revision and EPA Analysis

    On December 4, 2019 (84 FR 66361), EPA published a notice of 
proposed rulemaking (NPRM) for the Commonwealth of Virginia. In the 
NPRM, EPA proposed approval of Virginia's January 28, 2019 submittal 
addressing the following infrastructure elements, or portions thereof, 
for the 2015 ozone NAAQS: CAA section 110(a)(2)(A), (B), (C), 
(D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). A 
detailed summary of EPA's review and rationale for approving Virginia's 
submittal may be found in the Technical Support Document (TSD) for 
EPA's December 4, 2019 NPRM and will not be restated here.\1\
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    \1\ The TSD for EPA's December 4, 2019 NPRM is available online 
at www.regulations.gov, Docket ID Number EPA-R03-OAR-2019-0162.
_____________________________________-

II. Public Comments and EPA Response

    EPA received one comment on the December 4, 2019 NPRM. The comment 
is included in the docket for this action, available online at 
www.regulations.gov, Docket ID: EPA-R03-OAR-2019-0162.
    Comment: On January 3, 2020, EPA received an anonymous comment on 
the December 4, 2019 NPRM. The commenter suggests that EPA not approve 
Virginia's January 28, 2019 submittal addressing the infrastructure 
requirements, or portions thereof, for the 2015 ozone NAAQS. The 
commenter claims that pursuant to a court holding, which the commenter 
does not identify, EPA must demonstrate that ``it can find the 
necessary source from which to draw its authority.'' The commenter also 
references greenhouse gases and CAA section 111(d) as the basis for the 
objection.
    Response: EPA evaluated Virginia's January 28, 2019 submittal in 
accordance with the statutory requirements of CAA section 110(a)(2), as 
applicable. As explained in the NPRM and TSD, Virginia's SIP revision 
met the applicable requirements of CAA section 110(a)(2) for the 
following infrastructure elements: CAA section 110(a)(2)(A), (B), (C), 
(D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). The 
evaluation of Virginia's SIP submittal does not involve greenhouse 
gases or CAA section 111(d). The commenter has submitted ``comments 
consisting of little more than assertions that in the opinions of the 
commenters the agency got it wrong,'' without also submitting 
supporting information for EPA to evaluate. International Fabricare 
Institute v. E.P.A., 972 F.2d 384 (D.C. Cir. 1992). Accordingly, EPA 
has not been persuaded by the comment that it should change its 
decision to approve this SIP submittal.

III. Final Action

    EPA finds that Virginia's January 28, 2019 submittal satisfies the 
following infrastructure requirements of CAA section 110(a)(2) for the 
2015 ozone NAAQS: CAA section 110(a)(2)(A), (B), (C), (D)(i)(II), 
(D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). Therefore, EPA is 
approving Virginia's January 28, 2019 submittal addressing the 
infrastructure requirements for the 2015 ozone NAAQS as a revision to 
the Virginia SIP.

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

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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 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 May 18, 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 submittal addressing the 
infrastructure requirements of CAA section 110(a)(2)(A), (B), (C), 
(D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M) 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compounds.


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    Dated: February 24, 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 ``Section 110(a)(2) Infrastructure Requirements for the 
2015 Ozone NAAQS'' 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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                                                  * * * * * * *
Section 110(a)(2) Infrastructure  Statewide...............    1/28/2019  3/17/2020, [Insert   This action
 Requirements for the 2015 Ozone                                          Federal Register     addresses the
 NAAQS.                                                                   citation].           following CAA
                                                                                               elements: CAA
                                                                                               section
                                                                                               110(a)(2)(A),
                                                                                               (B), (C),
                                                                                               (D)(i)(II),
                                                                                               D(ii), (E), (F),
                                                                                               (G), (H), (J),
                                                                                               (K), (L), and
                                                                                               (M).
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[FR Doc. 2020-04853 Filed 3-16-20; 8:45 am]
 BILLING CODE 6560-50-P


