Approval and Promulgation of Air Quality Implementation Plans; Virginia; Minor New Source Review-Nonroad Engines, 57466-57469 [2016-19888]
Download as PDF
<![CDATA[
57466
Federal Register / Vol. 81, No. 163 / Tuesday, August 23, 2016 / Rules and Regulations
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. This action may
not be challenged later in proceedings to
enforce its requirements. (See CAA
section 307(b)(2).)
ENVIRONMENTAL PROTECTION
AGENCY
List of Subjects in 40 CFR Part 52
SUMMARY:
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Ozone, Volatile organic compounds,
Oxides of nitrogen.
Dated: August 5, 2016.
Robert A. Kaplan,
Acting Regional Administrator, Region 5.
40 CFR part 52 is amended as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
2. Section 52.2585 is amended by
adding paragraph (ee) to read as follows:
■
§ 52.2585
Control strategy; ozone.
*
*
*
*
*
(ee) Approval—On January 16, 2015,
the State of Wisconsin submitted a
revision to its State Implementation
Plan for Kenosha County, Wisconsin.
The submittal established new Motor
Vehicle Emissions Budgets (MVEB) for
Volatile Organic Compounds (VOC) and
Oxides of Nitrogen (NOX) for the year
2015. The MVEBs for Kenosha County
nonattainment area are now: 1.994 tons
per day of VOC emissions and 4.397
tons per day of NOX emissions for the
year 2015.
[FR Doc. 2016–20002 Filed 8–22–16; 8:45 am]
ehiers on DSK5VPTVN1PROD with RULES
BILLING CODE 6560–50–P
VerDate Sep<11>2014
14:39 Aug 22, 2016
Jkt 238001
40 CFR Part 52
[EPA–R03–OAR–2016–0418; FRL–9950–94–
Region 3]
Approval and Promulgation of Air
Quality Implementation Plans; Virginia;
Minor New Source Review—Nonroad
Engines
Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is taking direct final
action to approve revisions to the
Commonwealth of Virginia state
implementation plan (SIP). The
revisions amend the definition of
‘‘nonroad engine’’ under Virginia’s
minor New Source Review (NSR)
requirements to align with Federal
requirements. EPA is approving these
revisions to the Virginia SIP in
accordance with the requirements of the
Clean Air Act (CAA).
DATES: This rule is effective on October
24, 2016 without further notice, unless
EPA receives adverse written comment
by September 22, 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–2016–0418 at https://
www.regulations.gov, or via email to
campbell.dave@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, 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. 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
PO 00000
Frm 00028
Fmt 4700
Sfmt 4700
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
David Talley, (215) 814–2117, or by
email at talley.david@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On June 17, 2014, the Virginia
Department of Environmental Quality
(VADEQ), on behalf of the
Commonwealth of Virginia, submitted a
formal revision to its SIP. The SIP
revision consists of amendments to the
definition of ‘‘nonroad engine’’ under
VADEQ’s minor NSR regulations.
Virginia has a SIP approved minor NSR
program located in the Virginia
Administrative Code (VAC) at 9VAC 5–
80 which regulates certain
modifications and construction of
stationary sources within areas covered
by its SIP as necessary to assure the
national ambient air quality standards
(NAAQS) are achieved.
II. Summary of SIP Revision and EPA
Analysis
VADEQ’s June 17, 2014 SIP submittal
includes revisions to the definition of
‘‘nonroad engine’’ under the VAC,
specifically 9VAC5–80–1110. The
definition of ‘‘nonroad engine’’ was
expanded to include portable and
temporary engines. The revision to
9VAC5–80–1110 makes VADEQ’s
definition more consistent with the
Federal definition at 40 CFR 89.2.
According to VADEQ, Federal design
standards for internal combustion
engines and Federal fuel standards for
engines are already more restrictive than
permit requirements for portable and
temporary engines in Virginia’s minor
NSR program. Virginia’s amended
definition adopts the Federal definition
of ‘‘nonroad engine,’’ grouping portable
engines and temporary engines together
with other non-mobile engines. The
revised definition will streamline
Virginia’s minor NSR program by no
longer requiring VADEQ to issue minor
NSR permits without meaningful
additional emissions control
requirements on those engines. Virginia
asserted the amended definition does
not increase emissions or otherwise
affect air quality.
EPA finds these revisions are
appropriate and meet the Federal
requirements of 40 CFR 51.160 and
51.161, and CAA section 110(a)(2)(C) for
a minor NSR program. Additionally, the
revision to 9VAC5–80–1110(and in
particular the deletions in the revised
regulation) are in accordance with
E:\FR\FM\23AUR1.SGM
23AUR1
Federal Register / Vol. 81, No. 163 / Tuesday, August 23, 2016 / Rules and Regulations
section 110(l) of the CAA because they
will not interfere with any applicable
requirement concerning attainment and
reasonable further progress, or any other
applicable CAA requirement.
ehiers on DSK5VPTVN1PROD with RULES
III. Final Action
EPA is approving VADEQ’s June 17,
2014 SIP submittal and incorporating
the revised regulation into Virginia’s
SIP. 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 24, 2016 without further notice
unless EPA receives adverse comment
by September 22, 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.
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)
VerDate Sep<11>2014
14:39 Aug 22, 2016
Jkt 238001
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 § 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 § 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.
PO 00000
Frm 00029
Fmt 4700
Sfmt 4700
57467
V. Incorporation by Reference
In this rule, EPA is finalizing
regulatory text that includes
incorporation by reference. In
accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation
by reference of the VADEQ rules
regarding definitions and permitting
requirements discussed in section II of
this preamble. Therefore, these
materials have been approved by EPA
for inclusion in the SIP, have been
incorporated by reference by EPA into
that plan, are fully federally enforceable
under sections 110 and 113 of the CAA
as of the effective date of the final
rulemaking of EPA’s approval, and will
be incorporated by reference by the
Director of the Federal Register in the
next update of the SIP compilation.1
EPA has made, and will continue to
make, these materials generally
available through www.regulations.gov
and/or at the EPA Region III Office
(please contact the person identified in
the FOR FURTHER INFORMATION CONTACT
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);
1 62
E:\FR\FM\23AUR1.SGM
FR 27968 (May 22, 1997).
23AUR1
57468
Federal Register / Vol. 81, No. 163 / Tuesday, August 23, 2016 / Rules and Regulations
• 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).
This action pertaining to Virginia’s
minor NSR program may not be
challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
C. Petitions for Judicial Review
Dated: August 8, 2016.
Shawn M. Garvin,
Regional Administrator, Region III.
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 24, 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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
40 CFR part 52 is amended as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart VV—Virginia
2. In § 52.2420, the table in paragraph
(c) is amended by adding an entry for
Article 6—Permits for New and
Modified Stationary Sources after
Article 5 in 9 VAC 5–80 and adding an
entry for 5–80–1110 to read as follows:
■
§ 52.2420
*
Identification of plan.
*
*
(c) * * *
*
*
EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES
State citation
Title/subject
*
State
effective
date
*
Explanation
[former SIP
citation]
EPA Approval date
*
*
*
*
*
*
*
9 VAC 5, Chapter 80 Permits for Stationary Sources [Part VIII]
*
*
*
*
*
Article 6—Permits for New and Modified Stationary Sources
5–80–1110 ........
ehiers on DSK5VPTVN1PROD with RULES
*
VerDate Sep<11>2014
Definitions .........
*
14:39 Aug 22, 2016
3/27/14
8/23/16, [Insert Federal Register Citation]. ..............................................
*
Jkt 238001
PO 00000
*
Frm 00030
Fmt 4700
*
Sfmt 4700
E:\FR\FM\23AUR1.SGM
*
23AUR1
........................
*
Federal Register / Vol. 81, No. 163 / Tuesday, August 23, 2016 / Rules and Regulations
*
*
*
*
*
[FR Doc. 2016–19888 Filed 8–22–16; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R05–OAR–2015–0523; FRL–9950–84–
Region 5]
Air Plan Approval; Indiana;
Shipbuilding Antifoulant Coatings
Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving, as a revision
to the Indiana State Implementation
Plan (SIP), a submittal by the Indiana
Department of Environmental
Management (IDEM) dated July 17,
2015. The submittal contains a new
volatile organic compound (VOC) limit
for antifoulant coatings used in
shipbuilding and ship repair facilities
located in Clark, Floyd, Lake, and Porter
counties. The submittal also includes a
demonstration that this revision satisfies
the anti-backsliding provisions of the
Clean Air Act (CAA). The submittal
additionally removes obsolete dates and
clarifies a citation.
DATES: This direct final rule will be
effective October 24, 2016, unless EPA
receives adverse comments by
September 22, 2016. If adverse
comments are received, EPA will
publish a timely withdrawal of the
direct final rule in the Federal Register
informing the public that the rule will
not take effect.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R05–
OAR–2015–0523 at https://
www.regulations.gov or via email to
aburano.douglas@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, 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. EPA will generally not consider
comments or comment contents located
ehiers on DSK5VPTVN1PROD with RULES
SUMMARY:
VerDate Sep<11>2014
14:39 Aug 22, 2016
Jkt 238001
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
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Eric
Svingen, Environmental Engineer,
Attainment Planning and Maintenance
Section, Air Programs Branch (AR–18J),
Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 353–4489,
svingen.eric@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA. This SUPPLEMENTARY INFORMATION
section is arranged as follows:
I. What is the background of this SIP
revision?
II. What is EPA’s analysis of the State’s
submittal?
III. What action is EPA taking?
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews
I. What is the background of this SIP
revision?
On July 17, 2015, IDEM submitted to
EPA a request to incorporate into
Indiana’s SIP a revised version of 326
Indiana Administrative Code (IAC) 8–
12–4, ‘‘Volatile organic compound
emissions limiting requirements,’’ with
an effective date of June 21, 2015.
Indiana’s rulemaking adds, at 326 IAC
8–12–4(a)(1)(D), a VOC limit of 3.33 lbs
VOC per gallon for antifoulant coatings
used in shipbuilding and ship repair
facilities located in Clark, Floyd, Lake,
and Porter counties. In 326 IAC 8–12–
3(22)(C), an ‘‘antifoulant specialty
coating’’ is defined as any coating that
is applied to the underwater portion of
a vessel to prevent or reduce the
attachment of biological organisms and
that is registered with the EPA as a
pesticide under the Federal Insecticide,
Fungicide, and Rodenticide Act. The
same definition is provided in EPA’s
Control Techniques Guidelines (CTG)
for Shipbuilding and Ship Repair
Operations (Surface Coating) (61 FR
44050, August 27, 1996). Clark and
Floyd counties are part of the Louisville,
KY-IN maintenance area for the 1997
ozone National Ambient Air Quality
Standard (NAAQS), and Lake and Porter
counties are part of the ChicagoNaperville, IL-IN-WI nonattainment area
for the 2008 ozone NAAQS and the
Chicago-Gary-Lake County, IL-IN
PO 00000
Frm 00031
Fmt 4700
Sfmt 4700
57469
maintenance area for the 1997 ozone
NAAQS.
Before IDEM added the revised VOC
limit of 3.33 lbs VOC per gallon in 326
IAC 8–12–4(a)(1)(D), antifoulant
coatings were limited by the specialty
coating limit of 2.83 lbs VOC per gallon
at 326 IAC 8–12–4(a)(1)(E), which IDEM
has moved to 326 IAC 8–12–4(a)(1)(F) in
this revision. The revised limit of 3.33
lbs VOC per gallon is consistent with
the limit in Table 1–1 of EPA’s
Alternative Control Techniques (ACT)
Document: Surface Coating Operations
at Shipbuilding and Ship Repair
Facilities (EPA–453/R–94–032, April
1994). In addition, it is consistent with
the National Emission Standards for
Hazardous Air Pollutants (NESHAP) for
Shipbuilding and Ship Repair (Surface
Coating) at 40 CFR part 63, subpart II.
EPA’s CTG identifies the limit from the
ACT as Reasonably Available Control
Technology (RACT), and states that the
NESHAP can be used as a model rule for
shipbuilding and ship repair facilities.
In Indiana’s rulemaking, 326 IAC 8–
12–4 is also revised to remove obsolete
dates and clarify a reference to EPA’s
NESHAP for Shipbuilding and Ship
Repair (Surface Coating) at 40 CFR 63,
subpart II.
This SIP revision relies on offsets
generated by the Architectural and
Industrial Maintenance (AIM) coatings
rule at 326 IAC 8–14 to compensate for
the increase in allowable VOC
emissions.
II. What is EPA’s analysis of the State’s
submittal?
Revisions to SIP-approved control
measures must meet the requirements
of, among other statutory provisions,
section 110(l) of the CAA in order to be
approved by EPA. Section 110(l), known
as EPA’s anti-backsliding provision,
states:
‘‘The Administrator shall not approve
a revision of a plan if the revision would
interfere with any applicable
requirement concerning attainment and
reasonable further progress (as defined
in section 171), or any other applicable
requirement of this Act.’’
In the absence of an attainment
demonstration, to demonstrate no
interference with any applicable
NAAQS or requirement of the CAA
under section 110(l), states may
substitute equivalent emissions
reductions to compensate for any
change to a SIP-approved program, as
long as actual emissions are not
increased. ‘‘Equivalent’’ emissions
reductions mean reductions which are
equal to or greater than those reductions
achieved by the control measure
approved in the SIP. To show that
E:\FR\FM\23AUR1.SGM
23AUR1
]]>Agencies
[Federal Register Volume 81, Number 163 (Tuesday, August 23, 2016)]
[Rules and Regulations]
[Pages 57466-57469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-19888]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2016-0418; FRL-9950-94-Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Minor New Source Review--Nonroad Engines
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is taking direct
final action to approve revisions to the Commonwealth of Virginia state
implementation plan (SIP). The revisions amend the definition of
``nonroad engine'' under Virginia's minor New Source Review (NSR)
requirements to align with Federal requirements. EPA is approving these
revisions to the Virginia SIP in accordance with the requirements of
the Clean Air Act (CAA).
DATES: This rule is effective on October 24, 2016 without further
notice, unless EPA receives adverse written comment by September 22,
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-2016-0418 at https://www.regulations.gov, or via email to
campbell.dave@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, 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. 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 https://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: David Talley, (215) 814-2117, or by
email at talley.david@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On June 17, 2014, the Virginia Department of Environmental Quality
(VADEQ), on behalf of the Commonwealth of Virginia, submitted a formal
revision to its SIP. The SIP revision consists of amendments to the
definition of ``nonroad engine'' under VADEQ's minor NSR regulations.
Virginia has a SIP approved minor NSR program located in the Virginia
Administrative Code (VAC) at 9VAC 5-80 which regulates certain
modifications and construction of stationary sources within areas
covered by its SIP as necessary to assure the national ambient air
quality standards (NAAQS) are achieved.
II. Summary of SIP Revision and EPA Analysis
VADEQ's June 17, 2014 SIP submittal includes revisions to the
definition of ``nonroad engine'' under the VAC, specifically 9VAC5-80-
1110. The definition of ``nonroad engine'' was expanded to include
portable and temporary engines. The revision to 9VAC5-80-1110 makes
VADEQ's definition more consistent with the Federal definition at 40
CFR 89.2. According to VADEQ, Federal design standards for internal
combustion engines and Federal fuel standards for engines are already
more restrictive than permit requirements for portable and temporary
engines in Virginia's minor NSR program. Virginia's amended definition
adopts the Federal definition of ``nonroad engine,'' grouping portable
engines and temporary engines together with other non-mobile engines.
The revised definition will streamline Virginia's minor NSR program by
no longer requiring VADEQ to issue minor NSR permits without meaningful
additional emissions control requirements on those engines. Virginia
asserted the amended definition does not increase emissions or
otherwise affect air quality.
EPA finds these revisions are appropriate and meet the Federal
requirements of 40 CFR 51.160 and 51.161, and CAA section 110(a)(2)(C)
for a minor NSR program. Additionally, the revision to 9VAC5-80-
1110(and in particular the deletions in the revised regulation) are in
accordance with
[[Page 57467]]
section 110(l) of the CAA because they will not interfere with any
applicable requirement concerning attainment and reasonable further
progress, or any other applicable CAA requirement.
III. Final Action
EPA is approving VADEQ's June 17, 2014 SIP submittal and
incorporating the revised regulation into Virginia's SIP. 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 24, 2016 without further notice unless EPA
receives adverse comment by September 22, 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.
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
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.
V. Incorporation by Reference
In this rule, EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation by reference of the VADEQ
rules regarding definitions and permitting requirements discussed in
section II of this preamble. Therefore, these materials have been
approved by EPA for inclusion in the SIP, have been incorporated by
reference by EPA into that plan, are fully federally enforceable under
sections 110 and 113 of the CAA as of the effective date of the final
rulemaking of EPA's approval, and will be incorporated by reference by
the Director of the Federal Register in the next update of the SIP
compilation.\1\ EPA has made, and will continue to make, these
materials generally available through www.regulations.gov and/or at the
EPA Region III Office (please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section of this preamble for more
information).
---------------------------------------------------------------------------
\1\ 62 FR 27968 (May 22, 1997).
---------------------------------------------------------------------------
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);
[[Page 57468]]
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 October 24, 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 Virginia's minor NSR program 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, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: August 8, 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 adding an
entry for Article 6--Permits for New and Modified Stationary Sources
after Article 5 in 9 VAC 5-80 and adding an entry for 5-80-1110 to read
as follows:
Sec. 52.2420 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Virginia Regulations and Statutes
----------------------------------------------------------------------------------------------------------------
Explanation
State citation Title/subject State EPA Approval date [former SIP
effective date citation]
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
9 VAC 5, Chapter 80 Permits for Stationary Sources [Part VIII]
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Article 6--Permits for New and Modified Stationary Sources
----------------------------------------------------------------------------------------------------------------
5-80-1110.................. Definitions................ 3/27/14 8/23/16, [Insert ..............
Federal Register
Citation]..
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[[Page 57469]]
* * * * *
[FR Doc. 2016-19888 Filed 8-22-16; 8:45 am]
BILLING CODE 6560-50-P
