Approval and Promulgation of Air Quality Implementation Plans; Virginia; Revisions To Implement the Revocation of the 1997 Ozone NAAQS, 7610-7614 [2018-03524]
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Federal Register / Vol. 83, No. 36 / Thursday, February 22, 2018 / Rules and Regulations
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McKinney, Texas ...................................................................................... McKinney National Airport.
Melbourne, Florida .................................................................................... Orlando Melbourne International Airport.
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Midland, Texas ......................................................................................... Midland International Air and Space Port.
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Rogers, Arkansas ..................................................................................... Rogers Executive Airport—Carter Field.
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South Bend, Indiana ................................................................................. South Bend International Airport.
St. Augustine, Florida ............................................................................... Northeast Florida Regional Airport.
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Waukegan, Illinois ..................................................................................... Waukegan National Airport.
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Dated: February 15, 2018.
Kevin K. McAleenan,
Acting Commissioner, U.S. Customs and
Border Protection.
[FR Doc. 2018–03581 Filed 2–21–18; 8:45 am]
BILLING CODE 9111–14–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2017–0382; FRL–9974–
66—Region 3]
Approval and Promulgation of Air
Quality Implementation Plans; Virginia;
Revisions To Implement the
Revocation of the 1997 Ozone NAAQS
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is taking final action to
approve revisions to the Commonwealth
of Virginia (Virginia) state
implementation plan (SIP). The
revisions are related to the
implementation of the 2008 ozone
national ambient air quality standards
(NAAQS or standards) and the
revocation of the 1997 ozone NAAQS.
EPA is approving these revisions
updating the Virginia SIP to reflect the
revocation of the 1997 ozone NAAQS in
accordance with the requirements of the
Clean Air Act (CAA).
DATES: This final rule is effective on
March 26, 2018.
ADDRESSES: EPA has established a
docket for this action under Docket ID
Number EPA–R03–OAR–2017–0382. All
documents in the docket are listed on
the https://www.regulations.gov website.
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SUMMARY:
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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, (215) 814–2043, or by email
at calcinore.sara@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
Under the CAA, EPA establishes
NAAQS for criteria pollutants 1 in order
to protect human health and the
environment. In response to scientific
evidence linking ozone exposure to
adverse health effects, EPA promulgated
the first ozone NAAQS, the 0.12 part per
million (ppm) 1-hour ozone NAAQS, in
1979. See 44 FR 8202 (February 8,
1979). The CAA requires EPA to review
and reevaluate the NAAQS every 5
years in order to consider updated
information regarding the effects of the
criteria pollutants on human health and
the environment. On July 18, 1997, EPA
promulgated a revised ozone NAAQS,
referred to as the 1997 ozone NAAQS,
of 0.08 ppm averaged over eight hours.
62 FR 38855. This 8-hour ozone NAAQS
was determined to be more protective of
public health than the previous 1979 1hour ozone NAAQS. In 2008, EPA
1 The
‘‘criteria pollutants’’ include ozone (O3),
particulate matter (PM), sulfur dioxide (SO2),
nitrogen dioxide (NO2), carbon monoxide (CO), and
lead (Pb).
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strengthened the 8-hour ozone NAAQS
from 0.08 to 0.075 ppm. The 0.075 ppm
standard is referred to as the 2008 ozone
NAAQS and is more stringent than the
previous 1997 ozone NAAQS. See 73 FR
16436 (March 27, 2008).2
On March 6, 2015, EPA issued a final
rule addressing a range of
nonattainment area SIP requirements for
the 2008 ozone NAAQS. 80 FR 12264.
This final rule also revoked the 1997
ozone NAAQS and established antibacksliding requirements for areas not
attaining the 1997 ozone NAAQS in 40
CFR 51.1105 that became effective once
the 1997 ozone NAAQS was revoked.
The anti-backsliding provisions require
states to retain all applicable control
requirements for the 1997 ozone
NAAQS, while enabling states, where
possible, to focus planning efforts on
meeting the more protective 2008 ozone
NAAQS. According to EPA’s final rule,
the revocation of the 1997 ozone
NAAQS was effective as of April 6,
2015.
On September 9, 2016, Virginia
amended the Virginia Administrative
Code to be consistent with EPA’s March
6, 2015 final rule. On February 10, 2017,
Virginia, through the Virginia
Department of Environmental Quality
(VADEQ), formally submitted a SIP
revision (Revision G16) reflecting these
amendments.
On August 17, 2017 (82 FR 39097 and
82 FR 39031), EPA simultaneously
published a notice of proposed
rulemaking (NPR) and a direct final rule
(DFR) for Virginia approving the SIP
revision. EPA received two adverse
comments on the rulemaking and
attempted to withdraw the DFR prior to
2 On October 1, 2015, EPA strengthened the
ground-level ozone NAAQS to 0.070 ppm. See 80
FR 65292 (October 26, 2015). This rulemaking
addresses the 2008 ozone NAAQS and does not
address the 2015 ozone NAAQS.
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the effective date of October 16, 2017.
However, EPA inadvertently did not
withdraw the DFR prior to that date and
the rule automatically and prematurely
became effective on October 16, 2017,
revising Virginia’s SIP to reflect the
revocation of the 1997 ozone NAAQS.
In the NPR, EPA had proposed to
approve the SIP revision, which
included amendments made to
provisions in Virginia’s State Air
Pollution Control Board’s Regulations
for the Control and Abatement of Air
Pollution including 9VAC5–20–204,
9VAC5–30–55, 9VAC5–151–20, and
9VAC5–160–30. These revisions to the
Virginia Administrative Code amended
Virginia’s regulatory provisions to
reflect EPA’s revocation of the 1997
ozone NAAQS and the implementation
of the 2008 ozone NAAQS. In this final
rulemaking, EPA is responding to the
comments submitted on the proposed
revision to the Virginia SIP and is
reapproving the revisions to the Virginia
SIP to reflect the revocation of the 1997
ozone NAAQS after our failure to
withdraw the DFR (after EPA received
adverse public comments) prior to the
October 16, 2017 effective date of the
DFR.
II. Summary of SIP Revision and EPA
Analysis
Virginia’s February 10, 2017 SIP
submittal included amended versions of
9VAC5–20–204, 9VAC5–30–55,
9VAC5–151–20, and 9VAC5–160–30.
Virginia requested that EPA approve the
SIP revision so that these amended
regulations would become part of the
Virginia SIP. The amendment to
9VAC5–20–204 added text stating that
the list of Northern Virginia moderate
nonattainment areas under the 1997
ozone NAAQS is no longer effective
after April 6, 2015, the effective date of
the revocation of the 1997 ozone
NAAQS. 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.
Virginia also amended the Regulation
for Transportation Conformity and the
Regulation for General Conformity by
adding clarifying text to 9VAC5–151–20
and 9VAC5–160–30 stating that ‘‘The
provisions of this chapter shall not
apply in nonattainment and
maintenance areas that were designated
nonattainment or maintenance under a
federal standard that has been revoked.’’
These revisions to the Virginia
Administrative Code reflect EPA’s
revocation of the 1997 ozone NAAQS.
EPA’s review of this material
indicates the February 10, 2017
submittal is approvable as it revises
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regulations to be consistent with EPA’s
final rule implementing the 2008 ozone
NAAQS. See 80 FR 12264 (March 6,
2015). The revisions update regulations
to reflect the revocation of the 1997
NAAQS, which was effective April 6,
2015. Therefore, the revisions do not
affect emissions of air pollutants or
interfere with any applicable
requirement concerning attainment or
reasonable further progress or any other
applicable requirements in the CAA.
Thus, EPA finds the revision approvable
in accordance with section 110,
including section 110(l), of the CAA.
III. Public Comments and EPA’s
Responses
EPA received two anonymous public
comments on our action to approve the
February 10, 2017 SIP submittal.
Comment: The first commenter stated
that EPA cannot revoke the 1997 ozone
NAAQS and cited a current court case
in the United States Court of Appeals
for the District of Columbia Circuit (D.C.
Circuit). The commenter recommended
that EPA wait until the D.C. Circuit’s
decision and not ‘‘loosen standards.’’
Response: EPA would like to clarify
that the proposed revision to the
Virginia SIP does not revoke the 1997
ozone NAAQS as the 1997 ozone
NAAQS were revoked previously by
EPA in a separate rulemaking effective
April 6, 2015. See 80 FR 12264. The
commenter’s ability to challenge
revocation of the 1997 ozone NAAQS
was in that prior rulemaking. This
particular rulemaking action is only
removing references to the ‘‘revoked’’
1997 ozone NAAQS that had been in
Virginia’s SIP. Thus, the commenter’s
statement that EPA should not revoke
the 1997 ozone NAAQS is not relevant
to this rulemaking.
EPA acknowledges that there is
presently a legal challenge in the D.C.
Circuit to the rulemaking which revoked
the 1997 ozone NAAQS.3 However, EPA
disagrees with the commenter that EPA
should wait for the outcome of this
litigation before approving the Virginia
SIP revision. As stated above, this SIP
revision does not revoke the 1997 ozone
NAAQS as the revocation of the NAAQS
was effective on April 6, 2015 per EPA’s
March 6, 2015 rule. Additionally,
nothing in section 110 of the CAA
prevents Virginia from removing its
references to the revoked 1997 ozone
NAAQS from its SIP, as the removal
does not affect emissions of air
pollutants as it does not impact any
applicable SIP requirements that apply
3 South Coast Air Quality Management District v.
EPA, Case Nos. 15–1115, 15–1123 (U.S. Court of
Appeals, D.C. Cir.).
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to an area, interfere with any applicable
requirements in the CAA, nor interfere
with reasonable further progress. See
section 110(l) of the CAA. Thus, EPA
finds the revision approvable in
accordance with section 110, including
section 110(l), of the CAA.
In response to the commenter’s
concern that EPA’s approval will
‘‘loosen standards,’’ EPA notes that the
2008 ozone NAAQS of 0.075 ppm,
which EPA is presently implementing
in collaboration with states such as
Virginia, is more protective of human
health and the environment than the
1997 ozone NAAQS of 0.08 ppm. In
addition, the ozone nonattainment areas
in Virginia are the same for the 1997
ozone NAAQS as for the 2008 ozone
NAAQS. Thus, removing the revoked
1997 ozone NAAQS from the Virginia
SIP is not expected to have any
emissions impact nor interfere with
reasonable further progress or any
applicable CAA requirement. See also
80 FR 12264.
Comment Summary: The second
commenter requested that EPA not
revoke the ozone NAAQS.
Response: As discussed in detail in
response to the first comment, EPA’s
approval of the removal of references in
the Virginia SIP to the revoked 1997
ozone NAAQS does not actually revoke
the 1997 ozone NAAQS as EPA
previously effectuated that revocation in
a prior, separate rulemaking. See 80 FR
12264.
IV. Final Action
EPA is approving the Virginia SIP
revision submitted on February 10,
2017, which includes amendments
made to several sections of the Virginia
Administrative Code, including 9VAC5–
20–204, 9VAC5–30–55, 9VAC5–151–20,
and 9VAC5–160–30, as a revision to the
Virginia SIP because the revisions meet
the requirements of CAA section 110.
EPA is reapproving the revisions to
Virginia’s SIP because the revisions
were added to the SIP prematurely on
October 16, 2017 when EPA failed to
withdraw its DFR after receiving two
adverse comments on our direct final
approval of the revisions to the Virginia
SIP to reflect the revocation of the 1997
ozone NAAQS. This rule, which
responds to the adverse comments
received, finalizes our approval.
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
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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 § 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
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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.
VI. 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 revisions to 9VAC5–
20–204, 9VAC5–30–55, 9VAC5–151–20,
and 9VAC5–160–30 of the State Air
Pollution Control Board’s Regulation for
the Control and Abatement of Air
Pollution discussed in Section II of this
preamble. EPA has made, and will
continue to make, these materials
generally available through https://
www.regulations.gov and at the EPA
Region III Office (please contact the
person identified in the FOR FURTHER
INFORMATION CONTACT section of this
preamble for more information). 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 to the SIP compilation.4
VII. 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
4 62
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FR 27968 (May 22, 1997).
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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
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specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
C. Petitions for Judicial Review
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).
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 April 23, 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 to approve revised
provisions of the Virginia
Administrative Code including 9VAC5–
20–204, 9VAC5–30–55, 9VAC5–151–20,
and 9VAC5–160–30 for inclusion in the
Virginia SIP may not be challenged later
in proceedings to enforce its
requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Reporting and recordkeeping
requirements, Volatile organic
compounds.
Dated: February 9, 2018.
Cosmo Servidio,
Regional Administrator, Region III.
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 revising the entries
for Sections 5–20–204, 5–30–55, 5–151–
20, and 5–160–30. The revised text
reads as follows:
■
§ 52.2420
Environmental protection, Air
pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone,
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Identification of plan.
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(c) * * *
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EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES
State citation
State effective
date
Title/subject
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9 VAC 5, Chapter 20
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5–20–204 ..........
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Nonattainment Areas .............
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Ozone (8-hour, 0.08 ppm) .....
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11/16/16
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2/22/18, [Insert Federal
Register Citation].
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2/22/18, [Insert Federal
Register Citation].
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Subdivision D. is revised to read that the 1997
8-hour ozone NAAQS no longer apply after
April 6, 2015.
Previous approval 6/11/13.
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Transportation Conformity
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General Provisions
11/16/16
Frm 00021
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Addition of Subdivision C.
Previous approval 8/14/15.
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Part II
5–151–20 ..........
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Ambient Air Quality Standards [Part III]
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General Provisions
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9 VAC 5, Chapter 151
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Air Quality Programs
11/16/16
9 VAC 5, Chapter 30
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5–30–55 ............
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Part II
Explanation
[former SIP citation]
EPA approval date
2/22/18, [Insert Federal
Register Citation].
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Subdivision B. is amended to address revoked
federal standards.
Previous approval 11/20/09.
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EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES—Continued
State citation
State effective
date
Title/subject
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9 VAC 5, Chapter 160
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5–160–30 ..........
Applicability ............................
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BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R09–OAR–2017–0468; FRL–9974–
68—Region 9]
Approval of Arizona Air Plan
Revisions, Arizona Department of
Environmental Quality
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is taking final action to
approve a revision to the Arizona
Department of Environmental Quality
(ADEQ) portion of the Arizona State
Implementation Plan (SIP). This
SUMMARY:
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General Conformity
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General Provisions
11/16/16
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[FR Doc. 2018–03524 Filed 2–21–18; 8:45 am]
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Part II
Explanation
[former SIP citation]
EPA approval date
2/22/18, [Insert Federal
Register Citation].
*
Subdivision A. is amended to address revoked
federal standards.
Previous approval 12/12/11.
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revision concerns emissions of leadbearing fugitive dust from roads, storage
piles and other activities associated
with the primary copper smelter located
in Hayden, Arizona. We are approving
a state rule and associated appendix to
regulate these emissions under the
Clean Air Act (CAA or the Act).
DATES: This rule is effective on March
26, 2018.
ADDRESSES: The EPA has established a
docket for this action under Docket ID
No. EPA–R09–OAR–2017–0468. 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:
Christine Vineyard, EPA Region IX,
(415) 947–4125, vineyard.christine@
epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, ‘‘we,’’ ‘‘us’’
and ‘‘our’’ refer to the EPA.
Table of Contents
I. Proposed Action
II. Public Comments and EPA Responses
III. EPA Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews
I. Proposed Action
On November 27, 2017 (82 FR 55966),
the EPA proposed to approve the
following rule and appendix into the
Arizona SIP.
Local agency
Rule No.
Rule title
ADEQ ................
ADEQ ................
R18–2–B1301.01 ...............
Appendix 15 .......................
Limits on Lead-Bearing Fugitive Dust from the Hayden Smelter .......................
Test Methods for Determining Opacity and Stabilization of Unpaved Roads ....
We proposed to approve the rule and
associated appendix because we
determined that they comply with the
relevant CAA requirements. Our
proposed action contains more
information on the rule and associated
appendix and our evaluation.
daltland on DSKBBV9HB2PROD with RULES
*
II. Public Comments and EPA
Responses
The EPA’s proposed action provided
a 30-day public comment period. During
this period, we received three
comments. Two commenters raised
issues that are outside of the scope of
this rulemaking, including forest
management, wildfire suppression, and
VerDate Sep<11>2014
17:01 Feb 21, 2018
Jkt 244001
greenhouse-gas and other emissions
from wildfires. A third commenter
requested that the EPA ‘‘regulate the
amount of poisonous dust that is kicked
up into the air.’’ As explained in our
proposed action, Rule R18–2–B1301.01
establishes requirements to control leadbearing fugitive dust emissions
surrounding the Hayden copper smelter.
Our approval of this rule into the
Arizona SIP will make these
requirements federally enforceable.
Commenters did not raise any specific
issues germane to the approvability of
the rule and appendix.
PO 00000
Frm 00022
Fmt 4700
Sfmt 4700
Submitted
04/06/17
04/06/17
III. EPA Action
No comments were submitted that
change our assessment of the rule and
associated appendix as described in our
proposed action. Therefore, as
authorized in section 110(k)(3) of the
Act, the EPA is fully approving this rule
and associated appendix into the
Arizona SIP.
IV. Incorporation by Reference
In this rule, the EPA is finalizing
regulatory text that includes
incorporation by reference. In
accordance with requirements of 1 CFR
51.5, the EPA is finalizing the
E:\FR\FM\22FER1.SGM
22FER1
]]>Agencies
[Federal Register Volume 83, Number 36 (Thursday, February 22, 2018)]
[Rules and Regulations]
[Pages 7610-7614]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-03524]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2017-0382; FRL-9974-66--Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Revisions To Implement the Revocation of the 1997 Ozone NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to approve revisions to the Commonwealth of Virginia (Virginia)
state implementation plan (SIP). The revisions are related to the
implementation of the 2008 ozone national ambient air quality standards
(NAAQS or standards) and the revocation of the 1997 ozone NAAQS. EPA is
approving these revisions updating the Virginia SIP to reflect the
revocation of the 1997 ozone NAAQS in accordance with the requirements
of the Clean Air Act (CAA).
DATES: This final rule is effective on March 26, 2018.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2017-0382. 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, (215) 814-2043, or by
email at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
Under the CAA, EPA establishes NAAQS for criteria pollutants \1\ in
order to protect human health and the environment. In response to
scientific evidence linking ozone exposure to adverse health effects,
EPA promulgated the first ozone NAAQS, the 0.12 part per million (ppm)
1-hour ozone NAAQS, in 1979. See 44 FR 8202 (February 8, 1979). The CAA
requires EPA to review and reevaluate the NAAQS every 5 years in order
to consider updated information regarding the effects of the criteria
pollutants on human health and the environment. On July 18, 1997, EPA
promulgated a revised ozone NAAQS, referred to as the 1997 ozone NAAQS,
of 0.08 ppm averaged over eight hours. 62 FR 38855. This 8-hour ozone
NAAQS was determined to be more protective of public health than the
previous 1979 1-hour ozone NAAQS. In 2008, EPA strengthened the 8-hour
ozone NAAQS from 0.08 to 0.075 ppm. The 0.075 ppm standard is referred
to as the 2008 ozone NAAQS and is more stringent than the previous 1997
ozone NAAQS. See 73 FR 16436 (March 27, 2008).\2\
---------------------------------------------------------------------------
\1\ The ``criteria pollutants'' include ozone (O3),
particulate matter (PM), sulfur dioxide (SO2), nitrogen
dioxide (NO2), carbon monoxide (CO), and lead (Pb).
\2\ On October 1, 2015, EPA strengthened the ground-level ozone
NAAQS to 0.070 ppm. See 80 FR 65292 (October 26, 2015). This
rulemaking addresses the 2008 ozone NAAQS and does not address the
2015 ozone NAAQS.
---------------------------------------------------------------------------
On March 6, 2015, EPA issued a final rule addressing a range of
nonattainment area SIP requirements for the 2008 ozone NAAQS. 80 FR
12264. This final rule also revoked the 1997 ozone NAAQS and
established anti-backsliding requirements for areas not attaining the
1997 ozone NAAQS in 40 CFR 51.1105 that became effective once the 1997
ozone NAAQS was revoked. The anti-backsliding provisions require states
to retain all applicable control requirements for the 1997 ozone NAAQS,
while enabling states, where possible, to focus planning efforts on
meeting the more protective 2008 ozone NAAQS. According to EPA's final
rule, the revocation of the 1997 ozone NAAQS was effective as of April
6, 2015.
On September 9, 2016, Virginia amended the Virginia Administrative
Code to be consistent with EPA's March 6, 2015 final rule. On February
10, 2017, Virginia, through the Virginia Department of Environmental
Quality (VADEQ), formally submitted a SIP revision (Revision G16)
reflecting these amendments.
On August 17, 2017 (82 FR 39097 and 82 FR 39031), EPA
simultaneously published a notice of proposed rulemaking (NPR) and a
direct final rule (DFR) for Virginia approving the SIP revision. EPA
received two adverse comments on the rulemaking and attempted to
withdraw the DFR prior to
[[Page 7611]]
the effective date of October 16, 2017. However, EPA inadvertently did
not withdraw the DFR prior to that date and the rule automatically and
prematurely became effective on October 16, 2017, revising Virginia's
SIP to reflect the revocation of the 1997 ozone NAAQS. In the NPR, EPA
had proposed to approve the SIP revision, which included amendments
made to provisions in Virginia's State Air Pollution Control Board's
Regulations for the Control and Abatement of Air Pollution including
9VAC5-20-204, 9VAC5-30-55, 9VAC5-151-20, and 9VAC5-160-30. These
revisions to the Virginia Administrative Code amended Virginia's
regulatory provisions to reflect EPA's revocation of the 1997 ozone
NAAQS and the implementation of the 2008 ozone NAAQS. In this final
rulemaking, EPA is responding to the comments submitted on the proposed
revision to the Virginia SIP and is reapproving the revisions to the
Virginia SIP to reflect the revocation of the 1997 ozone NAAQS after
our failure to withdraw the DFR (after EPA received adverse public
comments) prior to the October 16, 2017 effective date of the DFR.
II. Summary of SIP Revision and EPA Analysis
Virginia's February 10, 2017 SIP submittal included amended
versions of 9VAC5-20-204, 9VAC5-30-55, 9VAC5-151-20, and 9VAC5-160-30.
Virginia requested that EPA approve the SIP revision so that these
amended regulations would become part of the Virginia SIP. The
amendment to 9VAC5-20-204 added text stating that the list of Northern
Virginia moderate nonattainment areas under the 1997 ozone NAAQS is no
longer effective after April 6, 2015, the effective date of the
revocation of the 1997 ozone NAAQS. 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.
Virginia also amended the Regulation for Transportation Conformity and
the Regulation for General Conformity by adding clarifying text to
9VAC5-151-20 and 9VAC5-160-30 stating that ``The provisions of this
chapter shall not apply in nonattainment and maintenance areas that
were designated nonattainment or maintenance under a federal standard
that has been revoked.'' These revisions to the Virginia Administrative
Code reflect EPA's revocation of the 1997 ozone NAAQS.
EPA's review of this material indicates the February 10, 2017
submittal is approvable as it revises regulations to be consistent with
EPA's final rule implementing the 2008 ozone NAAQS. See 80 FR 12264
(March 6, 2015). The revisions update regulations to reflect the
revocation of the 1997 NAAQS, which was effective April 6, 2015.
Therefore, the revisions do not affect emissions of air pollutants or
interfere with any applicable requirement concerning attainment or
reasonable further progress or any other applicable requirements in the
CAA. Thus, EPA finds the revision approvable in accordance with section
110, including section 110(l), of the CAA.
III. Public Comments and EPA's Responses
EPA received two anonymous public comments on our action to approve
the February 10, 2017 SIP submittal.
Comment: The first commenter stated that EPA cannot revoke the 1997
ozone NAAQS and cited a current court case in the United States Court
of Appeals for the District of Columbia Circuit (D.C. Circuit). The
commenter recommended that EPA wait until the D.C. Circuit's decision
and not ``loosen standards.''
Response: EPA would like to clarify that the proposed revision to
the Virginia SIP does not revoke the 1997 ozone NAAQS as the 1997 ozone
NAAQS were revoked previously by EPA in a separate rulemaking effective
April 6, 2015. See 80 FR 12264. The commenter's ability to challenge
revocation of the 1997 ozone NAAQS was in that prior rulemaking. This
particular rulemaking action is only removing references to the
``revoked'' 1997 ozone NAAQS that had been in Virginia's SIP. Thus, the
commenter's statement that EPA should not revoke the 1997 ozone NAAQS
is not relevant to this rulemaking.
EPA acknowledges that there is presently a legal challenge in the
D.C. Circuit to the rulemaking which revoked the 1997 ozone NAAQS.\3\
However, EPA disagrees with the commenter that EPA should wait for the
outcome of this litigation before approving the Virginia SIP revision.
As stated above, this SIP revision does not revoke the 1997 ozone NAAQS
as the revocation of the NAAQS was effective on April 6, 2015 per EPA's
March 6, 2015 rule. Additionally, nothing in section 110 of the CAA
prevents Virginia from removing its references to the revoked 1997
ozone NAAQS from its SIP, as the removal does not affect emissions of
air pollutants as it does not impact any applicable SIP requirements
that apply to an area, interfere with any applicable requirements in
the CAA, nor interfere with reasonable further progress. See section
110(l) of the CAA. Thus, EPA finds the revision approvable in
accordance with section 110, including section 110(l), of the CAA.
---------------------------------------------------------------------------
\3\ South Coast Air Quality Management District v. EPA, Case
Nos. 15-1115, 15-1123 (U.S. Court of Appeals, D.C. Cir.).
---------------------------------------------------------------------------
In response to the commenter's concern that EPA's approval will
``loosen standards,'' EPA notes that the 2008 ozone NAAQS of 0.075 ppm,
which EPA is presently implementing in collaboration with states such
as Virginia, is more protective of human health and the environment
than the 1997 ozone NAAQS of 0.08 ppm. In addition, the ozone
nonattainment areas in Virginia are the same for the 1997 ozone NAAQS
as for the 2008 ozone NAAQS. Thus, removing the revoked 1997 ozone
NAAQS from the Virginia SIP is not expected to have any emissions
impact nor interfere with reasonable further progress or any applicable
CAA requirement. See also 80 FR 12264.
Comment Summary: The second commenter requested that EPA not revoke
the ozone NAAQS.
Response: As discussed in detail in response to the first comment,
EPA's approval of the removal of references in the Virginia SIP to the
revoked 1997 ozone NAAQS does not actually revoke the 1997 ozone NAAQS
as EPA previously effectuated that revocation in a prior, separate
rulemaking. See 80 FR 12264.
IV. Final Action
EPA is approving the Virginia SIP revision submitted on February
10, 2017, which includes amendments made to several sections of the
Virginia Administrative Code, including 9VAC5-20-204, 9VAC5-30-55,
9VAC5-151-20, and 9VAC5-160-30, as a revision to the Virginia SIP
because the revisions meet the requirements of CAA section 110. EPA is
reapproving the revisions to Virginia's SIP because the revisions were
added to the SIP prematurely on October 16, 2017 when EPA failed to
withdraw its DFR after receiving two adverse comments on our direct
final approval of the revisions to the Virginia SIP to reflect the
revocation of the 1997 ozone NAAQS. This rule, which responds to the
adverse comments received, finalizes our approval.
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
[[Page 7612]]
performed by a regulated entity. The legislation further addresses the
relative burden of proof for parties either asserting the privilege or
seeking disclosure of documents for which the privilege is claimed.
Virginia's legislation also provides, subject to certain conditions,
for a penalty waiver for violations of environmental laws when a
regulated entity discovers such violations pursuant to a voluntary
compliance evaluation and voluntarily discloses such violations to the
Commonwealth and takes prompt and appropriate measures to remedy the
violations. Virginia's Voluntary Environmental Assessment Privilege
Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from
disclosure documents and information about the content of those
documents that are the product of a voluntary environmental assessment.
The Privilege Law does not extend to documents or information that: (1)
Are generated or developed before the commencement of a voluntary
environmental assessment; (2) are prepared independently of the
assessment process; (3) demonstrate a clear, imminent and substantial
danger to the public health or environment; or (4) are required by law.
On January 12, 1998, the Commonwealth of Virginia Office of the
Attorney General provided a legal opinion that states that the
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege
to documents and information ``required by law,'' including documents
and information ``required by federal law to maintain program
delegation, authorization or approval,'' since Virginia must ``enforce
federally authorized environmental programs in a manner that is no less
stringent than their federal counterparts. . . .'' The opinion
concludes that ``[r]egarding Sec. 10.1-1198, therefore, documents or
other information needed for civil or criminal enforcement under one of
these programs could not be privileged because such documents and
information are essential to pursuing enforcement in a manner required
by federal law to maintain program delegation, authorization or
approval.''
Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that
``[t]o the extent consistent with requirements imposed by federal
law,'' any person making a voluntary disclosure of information to a
state agency regarding a violation of an environmental statute,
regulation, permit, or administrative order is granted immunity from
administrative or civil penalty. The Attorney General's January 12,
1998 opinion states that the quoted language renders this statute
inapplicable to enforcement of any federally authorized programs, since
``no immunity could be afforded from administrative, civil, or criminal
penalties because granting such immunity would not be consistent with
federal law, which is one of the criteria for immunity.''
Therefore, EPA has determined that Virginia's Privilege and
Immunity statutes will not preclude the Commonwealth from enforcing its
program consistent with the federal requirements. In any event, because
EPA has also determined that a state audit privilege and immunity law
can affect only state enforcement and cannot have any impact on federal
enforcement authorities, EPA may at any time invoke its authority under
the CAA, including, for example, sections 113, 167, 205, 211 or 213, to
enforce the requirements or prohibitions of the state plan,
independently of any state enforcement effort. In addition, citizen
enforcement under section 304 of the CAA is likewise unaffected by
this, or any, state audit privilege or immunity law.
VI. 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 revisions
to 9VAC5-20-204, 9VAC5-30-55, 9VAC5-151-20, and 9VAC5-160-30 of the
State Air Pollution Control Board's Regulation for the Control and
Abatement of Air Pollution discussed in Section II of this preamble.
EPA has made, and will continue to make, these materials generally
available through https://www.regulations.gov and at the EPA Region III
Office (please contact the person identified in the For Further
Information Contact section of this preamble for more information).
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 to the SIP compilation.\4\
---------------------------------------------------------------------------
\4\ 62 FR 27968 (May 22, 1997).
---------------------------------------------------------------------------
VII. Statutory and Executive Order Reviews
A. General Requirements
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land as
defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian
tribe has demonstrated that a tribe has jurisdiction. In those areas of
Indian country, the rule does not have tribal implications and will not
impose substantial direct costs on tribal governments or preempt tribal
law as
[[Page 7613]]
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 April 23, 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 to approve revised provisions of the Virginia
Administrative Code including 9VAC5-20-204, 9VAC5-30-55, 9VAC5-151-20,
and 9VAC5-160-30 for inclusion in the Virginia SIP 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: February 9, 2018.
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 (c) is amended by revising
the entries for Sections 5-20-204, 5-30-55, 5-151-20, and 5-160-30. The
revised text reads as follows:
Sec. 52.2420 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Virginia Regulations and Statutes
--------------------------------------------------------------------------------------------------------------------------------------------------------
State Explanation [former SIP
State citation Title/subject effective date EPA approval date citation]
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
9 VAC 5, Chapter 20 General Provisions
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
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Part II Air Quality Programs
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
5-20-204...................... Nonattainment Areas........................... 11/16/16 2/22/18, [Insert Federal Addition of Subdivision C.
Register Citation]. Previous approval 8/14/15.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
9 VAC 5, Chapter 30 Ambient Air Quality Standards [Part III]
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
5-30-55....................... Ozone (8-hour, 0.08 ppm)...................... 11/16/16 2/22/18, [Insert Federal Subdivision D. is revised to
Register Citation]. read that the 1997 8-hour
ozone NAAQS no longer apply
after April 6, 2015.
Previous approval 6/11/13.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
9 VAC 5, Chapter 151 Transportation Conformity
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Part II General Provisions
--------------------------------------------------------------------------------------------------------------------------------------------------------
5-151-20...................... Applicability................................. 11/16/16 2/22/18, [Insert Federal Subdivision B. is amended to
Register Citation]. address revoked federal
standards.
Previous approval 11/20/09.
[[Page 7614]]
* * * * * * *
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9 VAC 5, Chapter 160 General Conformity
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Part II General Provisions
--------------------------------------------------------------------------------------------------------------------------------------------------------
5-160-30...................... Applicability................................. 11/16/16 2/22/18, [Insert Federal Subdivision A. is amended to
Register Citation]. address revoked federal
standards.
Previous approval 12/12/11.
* * * * * * *
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* * * * *
[FR Doc. 2018-03524 Filed 2-21-18; 8:45 am]
BILLING CODE 6560-50-P
