Approval and Promulgation of Air Quality Implementation Plans; Virginia; Revisions to the Regulatory Definition of Volatile Organic Compound, 10788-10791 [2018-04937]
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Federal Register / Vol. 83, No. 49 / Tuesday, March 13, 2018 / Rules and Regulations
For the reasons discussed in the
preamble, the Coast Guard amends 33
CFR part 165 as follows:
Dated: March 5, 2018.
M.B. Zamperini,
Captain, U.S. Coast Guard, Captain of the
Port Sector Ohio Valley.
PART 165—REGULATED NAVIGATION
AREAS AND LIMITED ACCESS AREAS
[FR Doc. 2018–04968 Filed 3–12–18; 8:45 am]
1. The authority citation for part 165
continues to read as follows:
BILLING CODE 9110–04–P
■
Authority: 33 U.S.C. 1231; 50 U.S.C. 191;
33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5;
Department of Homeland Security Delegation
No. 0170.1
2. Add § 165.T08–0006 to read as
follows:
■
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§ 165.T08–0006 Safety zone; Tennessee
River, Huntsville, AL.
(a) Location. The following area is a
temporary safety zone area: all navigable
waters of the Tennessee River between
Mile Marker (MM) 322.0 and MM 325.0,
Huntsville, AL.
(b) Effective date. This section is
effective from March 5, 2018 through
March 16, 2018 or until the cargo
operation is completed, whichever
comes first.
(c) Periods of enforcement. This
section will be enforced prior to and 30
minutes after all vessel movement and
cargo transfer operations taking place at
Redstone Arsenal. The Captain of the
Port Sector Ohio Valley (COTP) or a
designated representative will inform
the public through Broadcast Notice to
Mariners (BNM), Local Notices to
Mariners (LNM), or through other means
of public notice at least 1 hour in
advance of each enforcement period.
(d) Regulations. (1) In accordance
with the general regulations in § 165.23
of this part, entry into this zone is
prohibited unless specifically
authorized by the COTP or a designated
representative. Persons or vessels
desiring to enter into or pass through
the zone must request permission from
the COTP or a designated
representative. They may be contacted
by telephone at 1–800–253–7465 or on
VHF–FM radio channel 16.
(2) Persons and vessels permitted to
enter this safety zone must transit at the
slowest safe speed and comply with all
lawful directions issued by the COTP or
a designated representative.
(d) Informational broadcasts. The
COTP or a designated representative
will inform the public through
broadcast notices to mariners of the
enforcement period for the temporary
safety zone as well as any changes in the
planned schedule.
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ENVIRONMENTAL PROTECTION
AGENCY
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
40 CFR Part 52
VOCs are organic compounds of
carbon that, in the presence of sunlight,
[EPA–R03–OAR–2017–0544; FRL–9975–37–
react with sources of oxygen molecules,
Region 3]
such as nitrogen oxides (NOX) and
carbon monoxide (CO), in the
Approval and Promulgation of Air
Quality Implementation Plans; Virginia; atmosphere to produce tropospheric
ozone, commonly known as smog.
Revisions to the Regulatory Definition
Common sources that may emit VOCs
of Volatile Organic Compound
include paints, coatings, housekeeping
AGENCY: Environmental Protection
and maintenance products, and building
Agency (EPA).
and furnishing materials. Outdoor
ACTION: Final rule.
emissions of VOCs are regulated by EPA
primarily to prevent the formation of
SUMMARY: The Environmental Protection
ozone.
Agency (EPA) is approving two state
VOCs have different levels of
implementation plan (SIP) revisions
volatility, depending on the compound,
(Revision C16 and Revision I16)
and react at different rates to produce
formally submitted by the
varying amounts of ozone. VOCs that
Commonwealth of Virginia (Virginia).
are non-reactive or of negligible
The revisions pertain to amendments
reactivity to form ozone react slowly
made to the definition of ‘‘volatile
and/or form less ozone; therefore,
organic compound’’ (VOC) in the
reducing their emissions has limited
Virginia Administrative Code to
effects on local or regional ozone
conform with EPA’s regulatory
pollution. Section 302(s) of the CAA
definition of VOC. Specifically, these
specifies that EPA has the authority to
amendments remove the record keeping define the meaning of VOC and what
and reporting requirements for t-butyl
compounds shall be treated as VOCs for
acetate (also known as tertiary butyl
regulatory purposes. It is EPA’s policy
acetate or TBAC); Chemical Abstracts
that organic compounds with a
Service [CAS] number: 540–88–5) and
negligible level of reactivity should be
add 1,1,2,2,-Tetrafluoro-1-(2,2,2excluded from the regulatory definition
trifluoroethoxy) ethane (also known as
of VOC in order to focus control efforts
HFE-347pcf2; CAS number: 406–78–0)
on compounds that significantly affect
as a compound excluded from the
ozone concentrations. EPA uses the
regulatory definition of VOC, which
reactivity of ethane as the threshold for
match actions EPA has taken. EPA is
determining whether a compound is of
approving these revisions to update the
negligible reactivity. Compounds that
definition of VOC in the Virginia SIP in
are less or equally reactive as ethane
accordance with the requirements of the under certain assumed conditions may
Clean Air Act (CAA).
be deemed negligibly reactive and,
DATES: This final rule is effective on
therefore, suitable for exemption by EPA
April 12, 2018.
from the regulatory definition of VOC.
The policy of excluding negligibly
ADDRESSES: EPA has established a
reactive compounds from the regulatory
docket for this action under Docket ID
Number EPA–R03–OAR–2017–0544. All definition of VOC was first laid out in
‘‘Recommended Policy on Control of
documents in the docket are listed on
the https://www.regulations.gov website. Volatile Organic Compounds’’ (42 FR
35314, July 8, 1977) and was
Although listed in the index, some
supplemented subsequently with the
information is not publicly available,
‘‘Interim Guidance on Control of
e.g., confidential business information
Volatile Organic Compounds in Ozone
(CBI) or other information whose
State Implementation Plans’’ (70 FR
disclosure is restricted by statute.
54046, September 13, 2005). The
Certain other material, such as
regulatory definition of VOC as well as
copyrighted material, is not placed on
a list of compounds that are designated
the internet and will be publicly
by EPA as negligibly reactive can be
available only in hard copy form.
found at 40 CFR 51.100(s).
Publicly available docket materials are
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Federal Register / Vol. 83, No. 49 / Tuesday, March 13, 2018 / Rules and Regulations
On September 30, 1999, EPA
proposed to revise the regulatory
definition of VOC in 40 CFR 51.100(s)
to exclude TBAC as a VOC (64 FR
52731). In most cases, when a negligibly
reactive VOC is exempted from the
definition of VOC, emissions of that
compound are no longer recorded,
collected, or reported to states or the
EPA as part of VOC emissions.
However, EPA’s final rule excluded
TBAC from the definition of VOC for
purposes of VOC emissions limitations
or VOC content requirements, but
continued to define TBAC as a VOC for
purposes of all recordkeeping,
emissions reporting, photochemical
dispersion modeling, and inventory
requirements that apply to VOC (69 FR
69298, November 29, 2004) (2004 Final
Rule). This was primarily due to EPA’s
conclusion in the 2004 Final Rule that
‘‘negligibly reactive’’ compounds may
contribute significantly to ozone
formation if present in sufficient
quantities and that emissions of these
compounds need to be represented
accurately in photochemical modeling
analyses. Per EPA’s 2004 Final Rule,
Virginia partially excluded TBAC from
the regulatory definition of VOC, which
was approved into Virginia’s SIP on
August 18, 2006 (71 FR 47742).
When EPA exempted TBAC from the
VOC definition for purposes of control
requirements in the 2004 Final Rule,
EPA created a new category of
compounds and a new reporting
requirement that required that
emissions of TBAC be reported
separately by states and, in turn, by
industry. However, EPA did not issue
any guidance on how TBAC emissions
should be tracked and reported.
Therefore, the data that was reported as
result of these requirements was
incomplete and inconsistent. Also, in
the 2004 Final Rule, EPA stated that the
primary objective of the recordkeeping
and reporting requirements for TBAC
was to address the cumulative impacts
of ‘‘negligibly reactive’’ compounds and
suggested that future exempt
compounds may also be subject to such
requirements. However, such
requirements were not included in any
other proposed or final VOC
exemptions.
Because having high quality data on
TBAC emissions alone was unlikely to
be useful in assessing the cumulative
impacts of ‘‘negligibly reactive’’
compounds on ozone formation, EPA
subsequently concluded that the
recordkeeping and reporting
requirements for TBAC were not
achieving their primary objective of
informing more accurate photochemical
modeling in support of SIP submissions.
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Also, there was no evidence that TBAC
was being used at levels that would
cause concern for ozone formation and
that the requirements were providing
sufficient information to evaluate the
cumulative impacts of exempted
compounds. Therefore, because the
requirements were not addressing EPA’s
concerns as they were intended, EPA
revised the regulatory definition of VOC
under 40 CFR 51.100(s) to remove the
recordkeeping and reporting
requirements for TBAC (February 25,
2016, 81 FR 9339).
On August 1, 2016, EPA promulgated
a final rule revising the regulatory
definition of VOC in 40 CFR 51.100(s)
to add HFE-347pcf2 to the list of
compounds excluded from the
regulatory definition of VOC (81 FR
50330). This action was based on EPA’s
consideration of the compound’s
negligible reactivity and low
contribution to ozone as well as the low
likelihood of risk to human health or the
environment. EPA’s rationale for this
action is explained in more detail in the
final rule for this action. See 81 FR
50330 (August 1, 2016).
II. Summary of SIP Revision and EPA
Analysis
In order to conform with EPA’s
current regulatory definition of VOC in
40 CFR 51.100(s), the Virginia State Air
Pollution Control Board amended the
definition of VOC in 9VAC5–10–20 to
remove the recordkeeping and reporting
requirements for TBAC and add HFE347pcf2 to the list of compounds
excluded from the regulatory definition
of VOC. On July 31, 2017, the
Commonwealth of Virginia, through the
Virginia Department of Environmental
Quality (VADEQ), formally submitted
these amendments as two requested
revisions (Revision C16 and Revision
I16) to the Virginia SIP. Revision C16
requested that the definition of VOC be
updated in the Virginia SIP to conform
with EPA’s February 25, 2016 (81 FR
9339) final rulemaking updating EPA’s
regulatory definition of VOC in 40 CFR
51.100(s) to remove the recordkeeping,
emissions reporting, photochemical
dispersion modeling, and inventory
requirements related to the use of TBAC
as a VOC. Revision I16 requested that
the definition of VOC be updated in the
Virginia SIP to conform with EPA’s
August 1, 2016 (81 FR 50330) final
rulemaking updating EPA’s regulatory
definition of VOC in 40 CFR 51.100(s)
to add HFE-347pcf2 to the list of
compounds excluded from EPA’s
regulatory definition of VOC.
Virginia’s amendments to the
definition of VOC in 9VAC5–10–20 are
in accordance with EPA’s regulatory
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10789
changes to the definition of VOC in 40
CFR 51.100(s) and are therefore
approvable for inclusion in the Virginia
SIP in accordance with CAA section
110. Also, because EPA has made the
determination that TBAC and HFE347pcf2 are of negligible reactivity and
therefore have low contributions to
ozone as well as low likelihood of risk
to human health or the environment,
removing these chemicals from the
definition of VOC in the Virginia SIP as
well as the recordkeeping and reporting
requirements for these chemicals will
not interfere with attainment of any
NAAQS, reasonable further progress, or
any other requirement of the CAA.
Thus, the removal of the recordkeeping
and reporting requirements for TBAC
and the addition of HFR-347pcf2 to the
list of compounds excluded from the
regulatory definition of VOC is in
accordance with CAA section 110(l).
On December 27, 2017 (82 FR 61200),
EPA published a notice of proposed
rulemaking (NPR) for the
Commonwealth of Virginia. In the NPR,
EPA proposed approval of Revision C16,
which updated the definition of VOC in
the Virginia SIP to remove the
recordkeeping, emissions reporting,
photochemical dispersion modeling,
and inventory requirements related to
the use of TBAC as a VOC, and Revision
I16, which updated the definition of
VOC in the Virginia SIP by adding HFE347pcf2 to the list of compounds
excluded from EPA’s regulatory
definition of VOC. No public comments
were received on the NPR.
III. Final Action
EPA is approving both Revision C16
and Revision I16, submitted on July 31,
2017 by VADEQ, as revisions to the
Virginia SIP, as the submissions meet
the requirements of CAA section 110.
Revision C16 updates the regulatory
definition of VOC in the Virginia SIP by
removing the recordkeeping, emissions
reporting, photochemical dispersion
modeling, and inventory requirements
related to the use of TBAC as a VOC.
Revision I16 updates the regulatory
definition of VOC in the Virginia SIP to
add HFE-347pcf2 to the list of
compounds excluded from the
regulatory definition of VOC.
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
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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
renders this statute inapplicable to
enforcement of any federally authorized
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programs, since ‘‘no immunity could be
afforded from administrative, civil, or
criminal penalties because granting
such immunity would not be consistent
with federal law, which is one of the
criteria for immunity.’’
Therefore, EPA has determined that
Virginia’s Privilege and Immunity
statutes will not preclude the
Commonwealth from enforcing its
program consistent with the federal
requirements. In any event, because
EPA has also determined that a state
audit privilege and immunity law can
affect only state enforcement and cannot
have any impact on federal enforcement
authorities, EPA may at any time invoke
its authority under the CAA, including,
for example, sections 113, 167, 205, 211
or 213, to enforce the requirements or
prohibitions of the state plan,
independently of any state enforcement
effort. In addition, citizen enforcement
under section 304 of the CAA is
likewise unaffected by this, or any, state
audit privilege or immunity law.
V. Incorporation by Reference
In this 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 the
definition of VOC in 9VAC5–10–20 of
the Virginia Administrative Code
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).
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 to the SIP compilation.1
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,
1 62
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EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely approves state law as meeting
federal requirements and does not
impose additional requirements beyond
those imposed by state law. For that
reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• is not an Executive Order 13771 (82
FR 9339, February 2, 2017) regulatory
action because SIP approvals are
exempted under Executive Order 12866.
• does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• does not have federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
The SIP is not approved to apply on
any Indian reservation land as defined
in 18 U.S.C. 1151 or in any other area
where EPA or an Indian tribe has
demonstrated that a tribe has
jurisdiction. In those areas of Indian
country, the rule does not have tribal
implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
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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).
Court of Appeals for the appropriate
circuit by May 14, 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
updating the definition of VOC in the
Virginia SIP by removing the
recordkeeping, emissions reporting,
photochemical dispersion modeling,
and inventory requirements related to
the use of TBAC as a VOC and adding
HFE-347pcf2 to the list of compounds
excluded from the regulatory definition
of VOC may not be challenged later in
proceedings to enforce its requirements.
(See section 307(b)(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
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Ozone, Reporting and recordkeeping
List of Subjects in 40 CFR Part 52
requirements, Volatile organic
compounds.
Dated: February 26, 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 adding two entries for
‘‘Section 5–10–20’’ after the entry for
‘‘Section 5–10–20’’ (with the State
effective date of 7/30/15) to read as
follows:
■
§ 52.2420
*
Identification of plan.
*
*
(c) * * *
*
*
EPA–APPROVED VIRGINIA REGULATIONS AND STATUTES
State citation
State effective
date
Title/subject
Explanation
[former SIP citation]
EPA approval date
9 VAC 5, Chapter 10 General Definitions [Part I]
*
5–10–20 ..............
*
Terms Defined ................
5–10–20 ..............
Terms Defined ................
*
*
*
*
*
*
*
12/15/16
5/19/17
*
3/13/18, [Insert Federal
Register citation].
3/13/18, [Insert Federal
Register citation].
*
*
*
ACTION:
*
*
*
Definition of ‘‘volatile organic compound’’ is revised
by removing the recordkeeping, emissions reporting, photochemical dispersion modeling, and
inventory requirements related to the use of tbutyl acetate (also known as tertiary butyl acetate or TBAC) as a VOC.
Definition of ‘‘volatile organic compound’’ is revised
by
adding
1,1,2,2,-Tetrafluoro-1-(2,2,2trifluoroethoxy) ethane (also known as HFE347pcf2) to the list of compounds excluded from
the regulatory definition of VOC.
*
Final rule.
[FR Doc. 2018–04937 Filed 3–12–18; 8:45 am]
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
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[EPA–R03–OAR–2017–0215; FRL–9975–32–
Region 3]
Approval and Promulgation of Air
Quality Implementation Plans; Virginia;
Removal of Clean Air Interstate Rule
(CAIR) Trading Programs
Environmental Protection
Agency (EPA).
AGENCY:
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The Environmental Protection
Agency (EPA) is approving a state
implementation plan (SIP) revision
submitted by the Commonwealth of
Virginia (Virginia). The revision
requests EPA remove from the Virginia
SIP regulations from the Virginia
Administrative Code that established
trading programs under the Clean Air
Interstate Rule (CAIR). The EPAadministered trading programs under
CAIR were discontinued on December
31, 2014, upon the implementation of
the Cross-State Air Pollution Rule
(CSAPR), which was promulgated by
EPA to replace CAIR. CSAPR
SUMMARY:
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*
*
established federal trading programs for
sources in multiple states, including
Virginia, that replace the CAIR state and
federal trading programs. The submitted
SIP revision requests removal of state
regulations that implemented the CAIR
annual nitrogen oxides (NOX), ozone
season NOX, and annual sulfur dioxide
(SO2) trading programs from the
Virginia SIP (as CSAPR has replaced
CAIR). EPA is approving the SIP
revision in accordance with the
requirements of the Clean Air Act
(CAA).
DATES: This final rule is effective on
April 12, 2018.
ADDRESSES: EPA has established a
docket for this action under Docket ID
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]]>Agencies
[Federal Register Volume 83, Number 49 (Tuesday, March 13, 2018)]
[Rules and Regulations]
[Pages 10788-10791]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-04937]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2017-0544; FRL-9975-37-Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Revisions to the Regulatory Definition of Volatile Organic
Compound
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving two
state implementation plan (SIP) revisions (Revision C16 and Revision
I16) formally submitted by the Commonwealth of Virginia (Virginia). The
revisions pertain to amendments made to the definition of ``volatile
organic compound'' (VOC) in the Virginia Administrative Code to conform
with EPA's regulatory definition of VOC. Specifically, these amendments
remove the record keeping and reporting requirements for t-butyl
acetate (also known as tertiary butyl acetate or TBAC); Chemical
Abstracts Service [CAS] number: 540-88-5) and add 1,1,2,2,-Tetrafluoro-
1-(2,2,2-trifluoroethoxy) ethane (also known as HFE-347pcf2; CAS
number: 406-78-0) as a compound excluded from the regulatory definition
of VOC, which match actions EPA has taken. EPA is approving these
revisions to update the definition of VOC in the Virginia SIP in
accordance with the requirements of the Clean Air Act (CAA).
DATES: This final rule is effective on April 12, 2018.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2017-0544. 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
VOCs are organic compounds of carbon that, in the presence of
sunlight, react with sources of oxygen molecules, such as nitrogen
oxides (NOX) and carbon monoxide (CO), in the atmosphere to
produce tropospheric ozone, commonly known as smog. Common sources that
may emit VOCs include paints, coatings, housekeeping and maintenance
products, and building and furnishing materials. Outdoor emissions of
VOCs are regulated by EPA primarily to prevent the formation of ozone.
VOCs have different levels of volatility, depending on the
compound, and react at different rates to produce varying amounts of
ozone. VOCs that are non-reactive or of negligible reactivity to form
ozone react slowly and/or form less ozone; therefore, reducing their
emissions has limited effects on local or regional ozone pollution.
Section 302(s) of the CAA specifies that EPA has the authority to
define the meaning of VOC and what compounds shall be treated as VOCs
for regulatory purposes. It is EPA's policy that organic compounds with
a negligible level of reactivity should be excluded from the regulatory
definition of VOC in order to focus control efforts on compounds that
significantly affect ozone concentrations. EPA uses the reactivity of
ethane as the threshold for determining whether a compound is of
negligible reactivity. Compounds that are less or equally reactive as
ethane under certain assumed conditions may be deemed negligibly
reactive and, therefore, suitable for exemption by EPA from the
regulatory definition of VOC. The policy of excluding negligibly
reactive compounds from the regulatory definition of VOC was first laid
out in ``Recommended Policy on Control of Volatile Organic Compounds''
(42 FR 35314, July 8, 1977) and was supplemented subsequently with the
``Interim Guidance on Control of Volatile Organic Compounds in Ozone
State Implementation Plans'' (70 FR 54046, September 13, 2005). The
regulatory definition of VOC as well as a list of compounds that are
designated by EPA as negligibly reactive can be found at 40 CFR
51.100(s).
[[Page 10789]]
On September 30, 1999, EPA proposed to revise the regulatory
definition of VOC in 40 CFR 51.100(s) to exclude TBAC as a VOC (64 FR
52731). In most cases, when a negligibly reactive VOC is exempted from
the definition of VOC, emissions of that compound are no longer
recorded, collected, or reported to states or the EPA as part of VOC
emissions. However, EPA's final rule excluded TBAC from the definition
of VOC for purposes of VOC emissions limitations or VOC content
requirements, but continued to define TBAC as a VOC for purposes of all
recordkeeping, emissions reporting, photochemical dispersion modeling,
and inventory requirements that apply to VOC (69 FR 69298, November 29,
2004) (2004 Final Rule). This was primarily due to EPA's conclusion in
the 2004 Final Rule that ``negligibly reactive'' compounds may
contribute significantly to ozone formation if present in sufficient
quantities and that emissions of these compounds need to be represented
accurately in photochemical modeling analyses. Per EPA's 2004 Final
Rule, Virginia partially excluded TBAC from the regulatory definition
of VOC, which was approved into Virginia's SIP on August 18, 2006 (71
FR 47742).
When EPA exempted TBAC from the VOC definition for purposes of
control requirements in the 2004 Final Rule, EPA created a new category
of compounds and a new reporting requirement that required that
emissions of TBAC be reported separately by states and, in turn, by
industry. However, EPA did not issue any guidance on how TBAC emissions
should be tracked and reported. Therefore, the data that was reported
as result of these requirements was incomplete and inconsistent. Also,
in the 2004 Final Rule, EPA stated that the primary objective of the
recordkeeping and reporting requirements for TBAC was to address the
cumulative impacts of ``negligibly reactive'' compounds and suggested
that future exempt compounds may also be subject to such requirements.
However, such requirements were not included in any other proposed or
final VOC exemptions.
Because having high quality data on TBAC emissions alone was
unlikely to be useful in assessing the cumulative impacts of
``negligibly reactive'' compounds on ozone formation, EPA subsequently
concluded that the recordkeeping and reporting requirements for TBAC
were not achieving their primary objective of informing more accurate
photochemical modeling in support of SIP submissions. Also, there was
no evidence that TBAC was being used at levels that would cause concern
for ozone formation and that the requirements were providing sufficient
information to evaluate the cumulative impacts of exempted compounds.
Therefore, because the requirements were not addressing EPA's concerns
as they were intended, EPA revised the regulatory definition of VOC
under 40 CFR 51.100(s) to remove the recordkeeping and reporting
requirements for TBAC (February 25, 2016, 81 FR 9339).
On August 1, 2016, EPA promulgated a final rule revising the
regulatory definition of VOC in 40 CFR 51.100(s) to add HFE-347pcf2 to
the list of compounds excluded from the regulatory definition of VOC
(81 FR 50330). This action was based on EPA's consideration of the
compound's negligible reactivity and low contribution to ozone as well
as the low likelihood of risk to human health or the environment. EPA's
rationale for this action is explained in more detail in the final rule
for this action. See 81 FR 50330 (August 1, 2016).
II. Summary of SIP Revision and EPA Analysis
In order to conform with EPA's current regulatory definition of VOC
in 40 CFR 51.100(s), the Virginia State Air Pollution Control Board
amended the definition of VOC in 9VAC5-10-20 to remove the
recordkeeping and reporting requirements for TBAC and add HFE-347pcf2
to the list of compounds excluded from the regulatory definition of
VOC. On July 31, 2017, the Commonwealth of Virginia, through the
Virginia Department of Environmental Quality (VADEQ), formally
submitted these amendments as two requested revisions (Revision C16 and
Revision I16) to the Virginia SIP. Revision C16 requested that the
definition of VOC be updated in the Virginia SIP to conform with EPA's
February 25, 2016 (81 FR 9339) final rulemaking updating EPA's
regulatory definition of VOC in 40 CFR 51.100(s) to remove the
recordkeeping, emissions reporting, photochemical dispersion modeling,
and inventory requirements related to the use of TBAC as a VOC.
Revision I16 requested that the definition of VOC be updated in the
Virginia SIP to conform with EPA's August 1, 2016 (81 FR 50330) final
rulemaking updating EPA's regulatory definition of VOC in 40 CFR
51.100(s) to add HFE-347pcf2 to the list of compounds excluded from
EPA's regulatory definition of VOC.
Virginia's amendments to the definition of VOC in 9VAC5-10-20 are
in accordance with EPA's regulatory changes to the definition of VOC in
40 CFR 51.100(s) and are therefore approvable for inclusion in the
Virginia SIP in accordance with CAA section 110. Also, because EPA has
made the determination that TBAC and HFE-347pcf2 are of negligible
reactivity and therefore have low contributions to ozone as well as low
likelihood of risk to human health or the environment, removing these
chemicals from the definition of VOC in the Virginia SIP as well as the
recordkeeping and reporting requirements for these chemicals will not
interfere with attainment of any NAAQS, reasonable further progress, or
any other requirement of the CAA. Thus, the removal of the
recordkeeping and reporting requirements for TBAC and the addition of
HFR-347pcf2 to the list of compounds excluded from the regulatory
definition of VOC is in accordance with CAA section 110(l).
On December 27, 2017 (82 FR 61200), EPA published a notice of
proposed rulemaking (NPR) for the Commonwealth of Virginia. In the NPR,
EPA proposed approval of Revision C16, which updated the definition of
VOC in the Virginia SIP to remove the recordkeeping, emissions
reporting, photochemical dispersion modeling, and inventory
requirements related to the use of TBAC as a VOC, and Revision I16,
which updated the definition of VOC in the Virginia SIP by adding HFE-
347pcf2 to the list of compounds excluded from EPA's regulatory
definition of VOC. No public comments were received on the NPR.
III. Final Action
EPA is approving both Revision C16 and Revision I16, submitted on
July 31, 2017 by VADEQ, as revisions to the Virginia SIP, as the
submissions meet the requirements of CAA section 110. Revision C16
updates the regulatory definition of VOC in the Virginia SIP by
removing the recordkeeping, emissions reporting, photochemical
dispersion modeling, and inventory requirements related to the use of
TBAC as a VOC. Revision I16 updates the regulatory definition of VOC in
the Virginia SIP to add HFE-347pcf2 to the list of compounds excluded
from the regulatory definition of VOC.
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
[[Page 10790]]
burden of proof for parties either asserting the privilege or seeking
disclosure of documents for which the privilege is claimed. Virginia's
legislation also provides, subject to certain conditions, for a penalty
waiver for violations of environmental laws when a regulated entity
discovers such violations pursuant to a voluntary compliance evaluation
and voluntarily discloses such violations to the Commonwealth and takes
prompt and appropriate measures to remedy the violations. Virginia's
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and
information about the content of those documents that are the product
of a voluntary environmental assessment. The Privilege Law does not
extend to documents or information that: (1) Are generated or developed
before the commencement of a voluntary environmental assessment; (2)
are prepared independently of the assessment process; (3) demonstrate a
clear, imminent and substantial danger to the public health or
environment; or (4) are required by law.
On January 12, 1998, the Commonwealth of Virginia Office of the
Attorney General provided a legal opinion that states that the
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege
to documents and information ``required by law,'' including documents
and information ``required by federal law to maintain program
delegation, authorization or approval,'' since Virginia must ``enforce
federally authorized environmental programs in a manner that is no less
stringent than their federal counterparts. . . . '' The opinion
concludes that ``[r]egarding Sec. 10.1-1198, therefore, documents or
other information needed for civil or criminal enforcement under one of
these programs could not be privileged because such documents and
information are essential to pursuing enforcement in a manner required
by federal law to maintain program delegation, authorization or
approval.''
Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that
``[t]o the extent consistent with requirements imposed by federal
law,'' any person making a voluntary disclosure of information to a
state agency regarding a violation of an environmental statute,
regulation, permit, or administrative order is granted immunity from
administrative or civil penalty. The Attorney General's January 12,
1998 opinion states that the quoted language renders this statute
inapplicable to enforcement of any federally authorized programs, since
``no immunity could be afforded from administrative, civil, or criminal
penalties because granting such immunity would not be consistent with
federal law, which is one of the criteria for immunity.''
Therefore, EPA has determined that Virginia's Privilege and
Immunity statutes will not preclude the Commonwealth from enforcing its
program consistent with the federal requirements. In any event, because
EPA has also determined that a state audit privilege and immunity law
can affect only state enforcement and cannot have any impact on federal
enforcement authorities, EPA may at any time invoke its authority under
the CAA, including, for example, sections 113, 167, 205, 211 or 213, to
enforce the requirements or prohibitions of the state plan,
independently of any state enforcement effort. In addition, citizen
enforcement under section 304 of the CAA is likewise unaffected by
this, or any, state audit privilege or immunity law.
V. Incorporation by Reference
In this 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 the definition of VOC in 9VAC5-10-20 of the Virginia Administrative
Code 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). 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 to
the SIP compilation.\1\
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\1\ 62 FR 27968 (May 22, 1997).
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VI. Statutory and Executive Order Reviews
A. General Requirements
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866.
does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land as
defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian
tribe has demonstrated that a tribe has jurisdiction. In those areas of
Indian country, the rule does not have tribal implications and will not
impose substantial direct costs on tribal governments or preempt tribal
law as specified by Executive Order 13175 (65 FR 67249, November 9,
2000).
[[Page 10791]]
B. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
C. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by May 14, 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 updating the definition of VOC in the Virginia SIP
by removing the recordkeeping, emissions reporting, photochemical
dispersion modeling, and inventory requirements related to the use of
TBAC as a VOC and adding HFE-347pcf2 to the list of compounds excluded
from the regulatory definition of VOC 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, Intergovernmental relations, Ozone, Reporting and
recordkeeping requirements, Volatile organic compounds.
Dated: February 26, 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 adding
two entries for ``Section 5-10-20'' after the entry for ``Section 5-10-
20'' (with the State effective date of 7/30/15) to read as follows:
Sec. 52.2420 Identification of plan.
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(c) * * *
EPA-Approved Virginia Regulations and Statutes
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State Explanation [former SIP
State citation Title/subject effective date EPA approval date citation]
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9 VAC 5, Chapter 10 General Definitions [Part I]
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5-10-20.................... Terms Defined....... 12/15/16 3/13/18, [Insert Definition of ``volatile
Federal Register organic compound'' is
citation]. revised by removing the
recordkeeping,
emissions reporting,
photochemical
dispersion modeling,
and inventory
requirements related to
the use of t-butyl
acetate (also known as
tertiary butyl acetate
or TBAC) as a VOC.
5-10-20.................... Terms Defined....... 5/19/17 3/13/18, [Insert Definition of ``volatile
Federal Register organic compound'' is
citation]. revised by adding
1,1,2,2,-Tetrafluoro-1-
(2,2,2-trifluoroethoxy)
ethane (also known as
HFE-347pcf2) to the
list of compounds
excluded from the
regulatory definition
of VOC.
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[FR Doc. 2018-04937 Filed 3-12-18; 8:45 am]
BILLING CODE 6560-50-P
