Approval and Promulgation of Air Quality Implementation Plans; Virginia; Nonattainment New Source Review Requirements for the 2008 8-Hour Ozone Standard, 45351-45356 [2018-19364]
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Federal Register / Vol. 83, No. 174 / Friday, September 7, 2018 / Rules and Regulations
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 November 6, 2018. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this action for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. This action 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,
Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements, Sulfur
oxides, Volatile organic compounds.
Dated: August 8, 2018.
Cathy Stepp,
Regional Administrator, Region 5.
40 CFR part 52 is amended as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
2. Section 52.2570 is amended by
revising paragraph (c)(113)(i)(D), and by
adding paragraph (c)(137) to read as
follows:
■
Identification of plan.
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*
*
*
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*
(c) * * *
(113) * * *
(i) * * *
(D) NR 400.02(73m) and (131m),
406.02(1) and (2), 406.04(2m), NR
406.11(1)(g)(1), 406.11(3), 406.16,
406.17, 406.18, 407.02(3m), 407.105,
407.107, 407.14 Note, 407.14(4)(c),
16:12 Sep 06, 2018
BILLING CODE 6560–50–P
40 CFR Part 52
Authority: 42 U.S.C. 7401 et seq.
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[FR Doc. 2018–19161 Filed 9–6–18; 8:45 am]
ENVIRONMENTAL PROTECTION
AGENCY
■
§ 52.2570
407.15(8)(a) and 410.03(1)(a)(6) and (7)
as created and published in the
(Wisconsin) Register, August 2005, No.
596, effective September 1, 2005.
Sections NR 406.16(2)(d) and NR
406.17(3)(e) were repealed in 2015 and
are removed without replacement; see
paragraph (c)(137) of this section.
*
*
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*
(137) On May 16, 2017, the Wisconsin
Department of Natural Resources
submitted a request to revise
Wisconsin’s air permitting rules NR
400.02(136m), NR 406.04(1)(w), NR
406.08(1), NR 406.10 and NR 406.11(1).
These revisions replace the existing
definition of ‘‘emergency electric
generator’’ with the Federal definition of
‘‘restricted internal combustion engine’’,
amends procedures for revoking
construction permits and include minor
language changes and other
administrative updates. Wisconsin has
also requested to remove from the SIP
NR 406.16(2)(d) and NR 406.17(3)(e),
provisions affecting eligibility of
coverage under general and registration
construction permits, previously
approved in paragraph (c)(113) of this
section. This action ensures consistency
with Wisconsin Environmental
Protection Act (WEPA) laws.
(i) Incorporation by reference.
(A) Wisconsin Administrative Code,
NR 400.02(136m) as published in the
Wisconsin Administrative Register
November 2015 No. 719, effective
December 1, 2015.
(B) Wisconsin Administrative Code,
NR 406.04(1)(w), NR 406.08(1), NR
406.10 and NR 406.11(1) as published in
the Wisconsin Administrative Register
November 2015 No. 719, effective
December 1, 2015.
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[EPA–R03–OAR–2017–0399; FRL–9983–
33—Region 3]
Approval and Promulgation of Air
Quality Implementation Plans; Virginia;
Nonattainment New Source Review
Requirements for the 2008 8-Hour
Ozone Standard
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving a revision to
the Commonwealth of Virginia’s state
implementation plan (SIP). The revision
SUMMARY:
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is in response to EPA’s February 3, 2017
Findings of Failure to Submit for
various requirements relating to the
2008 8-hour ozone national ambient air
quality standards (NAAQS). This SIP
revision is specific to nonattainment
new source review (NNSR)
requirements. EPA is approving this
revision in accordance with the
requirements of the Clean Air Act
(CAA).
This final rule is effective on
October 9, 2018.
DATES:
EPA has established a
docket for this action under Docket ID
Number EPA–R03–OAR–2017–0399. All
documents in the docket are listed on
the https://www.regulations.gov
website. Although listed in the index,
some information is not publicly
available, e.g., confidential business
information (CBI) or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available through https://
www.regulations.gov, or please contact
the person identified in the FOR FURTHER
INFORMATION CONTACT section for
additional availability information.
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
David Talley, (215) 814–2117, or by
email at talley.david@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On April 4, 2018 (83 FR 14386), EPA
published a notice of proposed
rulemaking (NPR) for the
Commonwealth of Virginia. In the NPR,
EPA proposed approval of the SIP
submitted in response to EPA’s final
2008 8-hour ozone NAAQS Findings of
Failure to Submit for NNSR
requirements. See 82 FR 9158 (February
3, 2017). Specifically, Virginia is
certifying that its existing NNSR
program, covering the Washington, DC
nonattainment area (which includes
Alexandria City, Arlington County,
Fairfax County, Fairfax City, Falls
Church City, Loudoun County,
Manassas City, Manassas Park City, and
Prince William County in Virginia)
(hereafter, Washington, DC
Nonattainment Area) for the 2008 8hour ozone NAAQS, is at least as
stringent as the requirements at 40 CFR
51.165, as amended by the final rule
entitled ‘‘Implementation of the 2008
National Ambient Air Quality Standards
for Ozone: State Implementation Plan
Requirements’’ (SIP Requirements Rule),
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for ozone and its precursors.1 See 80 FR
12264 (March 6, 2015). The formal SIP
revision was submitted by the Virginia
Department of Environmental Quality
(VADEQ) on behalf of the
Commonwealth of Virginia on May 11,
2017.
On March 12, 2008, EPA promulgated
a revised 8-hour ozone NAAQS of 0.075
parts per million (ppm). See 73 FR
16436 (March 27, 2008). Under EPA’s
regulations at 40 CFR 50.15, the 2008 8hour ozone NAAQS is attained when
the three-year average of the annual
fourth-highest daily maximum 8-hour
average ambient air quality ozone
concentration is less than or equal to
0.075 ppm.
Upon promulgation of a new or
revised NAAQS, the CAA requires EPA
to designate as nonattainment any area
that is violating the NAAQS based on
the three most recent years of ambient
air quality data available at the
conclusion of the designation process.
The Washington, DC Nonattainment
Area was classified as a marginal
nonattainment area for the 2008 8-hour
ozone NAAQS on May 21, 2012
(effective July 20, 2012) using 2008–
2010 ambient air quality data. See 77 FR
30088. On March 6, 2015, EPA issued
the final SIP Requirements Rule, which
establishes the requirements that state,
tribal, and local air quality management
agencies must meet as they develop
implementation plans for areas where
air quality exceeds the 2008 8-hour
ozone NAAQS. See 80 FR 12264. Areas
that were designated as marginal ozone
nonattainment areas were required to
attain the 2008 8-hour ozone NAAQS no
later than July 20, 2015, based on 2012–
2014 monitoring data. The Washington,
DC Nonattainment Area did not attain
the 2008 8-hour ozone NAAQS by July
20, 2015; however, this area did meet
the CAA section 181(a)(5) criteria, as
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1 The
SIP Requirements Rule addresses a range of
nonattainment area SIP requirements for the 2008
8-hour ozone NAAQS, including requirements
pertaining to attainment demonstrations, reasonable
further progress (RFP), reasonably available control
technology, reasonably available control measures,
major new source review, emission inventories, and
the timing of SIP submissions and of compliance
with emission control measures in the SIP. The rule
also revokes the 1997 ozone NAAQS and
establishes anti-backsliding requirements. On
February 16, 2018, the United States Court of
Appeals for the District of Columbia Circuit (D.C.
Circuit) issued an opinion granting a number of
challenges to the EPA’s SIP Requirements Rule.
South Coast Air Quality Mgmt. Dist. v. EPA, 882
F.3d 1138 (D.C. Cir. 2018). Specifically, as relevant
here, the Court vacated the ‘‘redesignation
substitute’’ provision in the implementation rule,
which allowed states a way to satisfy antibacksliding requirements for revoked standards.
EPA and South Coast Air Quality Management
District filed petitions for rehearing and those
petitions are pending before the Court.
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interpreted in 40 CFR 51.1107, for a
one-year attainment date extension. See
81 FR 26697 (May 4, 2016). Therefore,
on April 11, 2016, the EPA
Administrator signed a final rule
extending the Washington, DC
Nonattainment Area 2008 8-hour ozone
NAAQS attainment date from July 20,
2015 to July 20, 2016.2
Based on initial nonattainment
designations for the 2008 8-hour ozone
standard, as well as the March 6, 2015
final SIP Requirements Rule, Virginia
was required to develop a SIP revision
addressing certain CAA requirements
for the Washington, DC Nonattainment
Area, and submit to EPA a NNSR
Certification SIP or SIP revision no later
than 36 months after the effective date
of area designations for the 2008 8-hour
ozone NAAQS (i.e., July 20, 2015).3 See
80 FR 12264 (March 6, 2015). EPA is
proposing to approve Virginia’s May 11,
2017 NNSR Certification SIP revision.
EPA’s analysis of how this SIP revision
addresses the NNSR requirements for
the 2008 8-hour ozone NAAQS is
provided in Section II.
II. Summary of SIP Revision and EPA
Analysis
This rulemaking action is specific to
Virginia’s NNSR requirements. NNSR is
a preconstruction review permit
program that applies to new major
stationary sources or major
modifications at existing sources located
in a nonattainment area.4 The specific
NNSR requirements for the 2008 8-hour
ozone NAAQS are located in 40 CFR
51.160–165. As set forth in the SIP
Requirements Rule, for each
nonattainment area, a NNSR plan or
plan revision was due no later than 36
months after the effective date of area
designations for the 2008 8-hour ozone
standard (i.e., July 20, 2015).5
2 EPA finalized approval of a Determination of
Attainment (DOA) for the 2008 8-hour ozone
NAAQS for the Washington, DC Nonattainment
Area on November 14, 2017. This final action was
based on complete, certified, and quality assured
ambient air quality monitoring data for the 2013–
2015 monitoring period. See 82 FR 52651
(November 14, 2017). It should be noted that a DOA
does not alleviate the need for Virginia to certify
that their existing SIP approved NNSR program is
as stringent as the requirements at 40 CFR 51.165,
as NNSR applies in nonattainment areas until an
area has been redesignated to attainment.
3 Neither Virginia’s obligation to submit the
NNSR Certification SIP nor the requirements
governing that submission were affected by the D.C.
Circuit’s February 16, 2018 decision on portions of
the SIP Requirements Rule in South Coast Air
Quality Mgmt. Dist. v. EPA.
4 See CAA sections 172(c)(5), 173 and 182.
5 With respect to states with nonattainment areas
subject to a finding of failure to submit NNSR SIP
revisions, such revisions would no longer be
required if the area were redesignated to attainment.
The CAA’s prevention of significant deterioration
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The minimum SIP requirements for
NNSR permitting programs for the 2008
8-hour ozone NAAQS are located in 40
CFR 51.165. See 40 CFR 51.1114. These
NNSR program requirements include
those promulgated in the ‘‘Phase 2
Rule’’ implementing the 1997 8-hour
ozone NAAQS (75 FR 71018 (November
29, 2005)) and the SIP Requirements
Rule implementing the 2008 8-hour
ozone NAAQS. Under the Phase 2 Rule,
the SIP for each ozone nonattainment
area must contain NNSR provisions
that: Set major source thresholds for
oxides of nitrogen (NOX) and volatile
organic compounds (VOC) pursuant to
40 CFR 51.165(a)(1)(iv)(A)(1)(i)–(iv) and
(2); classify physical changes as a major
source if the change would constitute a
major source by itself pursuant to 40
CFR 51.165(a)(1)(iv)(A)(3); consider any
significant net emissions increase of
NOX as a significant net emissions
increase for ozone pursuant to 40 CFR
51.165(a)(1)(v)(E); consider certain
increases of VOC emissions in extreme
ozone nonattainment areas as a
significant net emissions increase and a
major modification for ozone pursuant
to 40 CFR 51.165(a)(1)(v)(F); set
significant emissions rates for VOC and
NOX as ozone precursors pursuant to 40
CFR 51.165(a)(1)(x)(A)–(C) and (E);
contain provisions for emissions
reductions credits pursuant to 40 CFR
51.165(a)(3)(ii)(C)(1)–(2); provide that
the requirements applicable to VOC also
apply to NOX pursuant to 40 CFR
51.165(a)(8); and set offset ratios for
VOC and NOX pursuant to 40 CFR
51.165(a)(9)(i)–(iii) (renumbered as
(a)(9)(ii)–(iv) under the SIP
Requirements Rule for the 2008 8-hour
ozone NAAQS). Under the SIP
Requirements Rule for the 2008 8-hour
ozone NAAQS, the SIP for each ozone
nonattainment area designated
nonattainment for the 2008 8-hour
ozone NAAQS and designated
nonattainment for the 1997 ozone
NAAQS on April 6, 2015, must also
contain NNSR provisions that include
the anti-backsliding requirements at 40
CFR 51.1105. See 40 CFR 51.165(a)(12).
Virginia’s SIP-approved NNSR
program is implemented through Article
9, Permits for Major Stationary Sources
and Major Modifications Locating in
Nonattainment Areas or the Ozone
Transport Region, in the Virginia
Administrative Code (VAC), 9VAC5–
80—Permits for Stationary Sources. In
its May 11, 2017 SIP revision, Virginia
certifies that the version of 9VAC5–80
(PSD) program requirements apply in lieu of NNSR
after an area is redesignated to attainment. For areas
outside the OTR, NNSR requirements do not apply
in areas designated as attainment.
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in the SIP is at least as stringent as the
federal NNSR requirements for the
Washington, DC Nonattainment Area.
EPA last approved revisions to
Virginia’s major NNSR SIP on August
28, 2017. In that action, EPA approved
revisions to Virginia’s SIP which made
Virginia’s NNSR program consistent
with federal requirements. Additionally,
those revisions corrected a deficiency
which had been grounds for limited
approval of Virginia’s program. EPA
found, therefore, that Virginia’s program
met all CAA requirements and was fully
approvable. See 82 FR 40703.
EPA notes that neither 9VAC5–80 nor
Virginia’s approved SIP have the
regulatory provision for any emissions
change of VOC in extreme
nonattainment areas, specified in 40
CFR 51.165(a)(1)(v)(F), because Virginia
has never had an area designated
extreme nonattainment for any of the
ozone NAAQS. Nonetheless, the
Virginia SIP is not required to have this
requirement for VOC in extreme
nonattainment areas until such time as
Virginia has an extreme ozone
nonattainment area. In Virginia’s May
11, 2017 SIP revision, VADEQ asserted
that anti-backsliding provisions do not
apply to any area within Virginia,
including the northern Virginia/
Metropolitan Washington, DC area,
because Virginia submitted to EPA a
final ‘‘redesignation substitute’’ request
for the 1997 ozone NAAQS for the
Washington, DC area on April 29, 2016.
As noted, in its February 16, 2018
decision, the South Coast Court vacated
the provision in the implementation
rule for the 2008 ozone NAAQS that
created the ‘‘redesignation substitute.’’
The Court disagreed with EPA’s
interpretation of the Clean Air Act that
once a standard is revoked, the Agency
no longer has authority to change
designations or classifications for that
revoked standard. The Court ruled that
in order for 1997 ozone nonattainment
areas to be relieved from antibacksliding requirements under the old
revoked standard, those areas would
need to seek, and EPA would need to
approve, full statutory redesignations to
attainment in compliance with CAA
section 107(d)(3). The Court thus
vacated the ‘‘redesignation substitute,’’
because it held that areas could not
receive the benefits of a redesignation
without meeting all of the elements in
CAA section 107(d)(3)(E).
Given the D.C. Circuit’s vacatur of the
redesignation substitute mechanism in
South Coast, EPA cannot approve
Virginia’s redesignation substitute
request. Therefore, until the
Washington, DC Nonattainment Area is
redesignated under section 107(d)(3),
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the state remains required to comply
with the anti-backsliding provisions
found in 40 CFR 51.165(a)(12) and
located in 9VAC5–80 of its SIP which
applied to NSR requirements for the
1997 ozone NAAQS. EPA finds that the
Virginia SIP presently includes all
required major stationary source
thresholds and emissions offset ratios
for NSR purposes which were
established for the SIP for Virginia’s
1997 8-hour ozone NAAQS
nonattainment designation. See 82 FR
40703 (finding Virginia’s NNSR program
consistent with all federal requirements
in August 2017).
Thus, EPA finds that Virginia’s SIP
includes relevant and required antibacksliding requirements. Virginia has
not changed these major stationary
source threshold and offset provisions
in 9VAC5–80–2010 C, and furthermore,
they remain in Virginia’s federallyapproved SIP unless and until EPA
approves a full redesignation request in
accordance with CAA section 107.6 EPA
expects that VADEQ will continue to
implement its NNSR program
consistently with its approved SIP for
major stationary source thresholds and
emission offset ratios.
EPA has not amended the SIP
provisions related to 9VAC5–80 since
the August 28, 2017 rulemaking where
EPA last approved Virginia’s NNSR
provisions as meeting CAA
requirements for a NNSR program. The
SIP-approved version of 9VAC5–80
covers Virginia’s portion of the
Washington, DC Nonattainment Area
and remains adequate to meet all
applicable NNSR requirements for the
2008 8-hour ozone NAAQS in 40 CFR
51.165, the Phase 2 Rule, and the SIP
Requirements Rule.
III. Public Comments and EPA
Response
EPA received a total of sixteen sets of
comments on the April 4, 2018 NPR.
Fifteen of those did not concern any of
the specific issues raised in the NPR,
nor did they address EPA’s rationale for
the proposed approval of VADEQ’s
submittal. Therefore, EPA is not
responding to those comments. EPA did
receive one set of relevant comments.
Those comments and EPA’s responses
are discussed in this Section. All of the
comments received are included in the
docket for this rulemaking action.
Comment 1: The commenter asserts
that EPA’s proposed approval failed to
adequately address whether Virginia’s
SIP ensures that the CAA’s anti6 Under the 1997 8-hour ozone NAAQS, the
Washington, DC Area was classified as moderate
nonattainment.
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backsliding requirements are met. In
support of this claim, the commenter
first points to Virginia’s May 11, 2017
submittal in which VADEQ claims that
anti-backsliding provisions don’t apply
because Virginia submitted a
redesignation substitute request on
April 26, 2016, and asserts that
redesignation substitutes were ruled
unlawful by the D.C. Circuit in the
South Coast decision. Second, the
commenter takes issue with EPA’s
assertion in the NPR that Virginia’s
NNSR SIP contains all of the
requirements necessary to implement
the 2008 8-hour ozone NAAQS, citing
EPA’s failure to address a February 18,
2018 approval action related to the
implementation of the 2008 ozone
NAAQS and the revocation of the 1997
ozone NAAQS.7 The commenter asserts
that until EPA addresses how ‘‘the SIP
as a whole,’’ (including the revisions
from EPA’s February 18, 2018 approval)
meets the anti-backsliding requirements,
approval of Virginia’s May 17, 2017
submittal would be arbitrary and
unlawful.
EPA Response 1: The anti-backsliding
requirements at both 40 CFR
51.165(a)(12) and 51.1105 provide that
the minimum SIP elements for NNSR
outlined at 40 CFR 51.165 continue to
apply in areas designated as
nonattainment for the 1997 ozone
NAAQS that had not been redesignated
to attainment by EPA prior to the April
6, 2015 revocation date of the 1997
NAAQS. EPA agrees with the
commenter that VADEQ’s assertion that
the April 26, 2016 redesignation
substitute request relieves Virginia of
the CAA’s anti-backsliding requirements
is not correct, first because EPA never
acted on that request and second
because even if the Agency had
approved such request, the South Coast
Court held that redesignation substitutes
cannot relieve nonattainment areas of
anti-backsliding requirements. EPA
clearly and unambiguously stated in the
NPR (and restated in Section II of this
document): ‘‘Virginia remains required
to comply with the anti-backsliding
provisions found in 40 CFR
51.165(a)(12) and located in 9VAC5–80
of its SIP which applied to NSR
requirements for the 1997 ozone
NAAQS.’’ 8 EPA further stated that
Virginia is expected to implement its
NNSR program consistent with its
approved SIP (which does contain the
CAA’s anti-backsliding requirements)
unless and until EPA promulgates a full
redesignation of the DC Area for the
7 See
8 See
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83 FR 14388
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2008 ozone NAAQS in accordance with
CAA section 107(d)(3).
With respect to the commenter’s
assertion that EPA must evaluate the SIP
as a whole and in light of the February
18, 2018 approval action, in order to
grant approval to Virginia’s May 17,
2017 submittal, EPA disagrees. EPA
clearly stated in the NPR, and reiterates
in this action, this action is specific to
the NNSR program requirements of 40
CFR 51.165, which are codified by
Virginia under Article 9 of 9VAC5–80.
EPA’s February 18, 2018 approval
action did not revise or address any of
the NNSR requirements in 9VAC5–80
and is therefore irrelevant to this action.
EPA is not obligated, when reviewing
each SIP submission, to re-review all
prior SIP submissions already acted on.
Such an interpretation of the CAA
would subject the Agency to neverending review of the state’s
implementation plan.
The February 18, 2018 action
approved revisions to 9VAC5–20–204,
9VAC5–30–55, 9VAC5–151–20, and
9VAC5–160–30. The amendment to
9VAC5–30–55 added text stating that
the primary and secondary ambient air
quality standard of 0.08 ppm shall no
longer apply after April 6, 2015,
consistent with EPA’s revocation of the
1997 standard. The revisions to 9VAC5–
151–20 and 9VAC5–160–30 were
related to transportation conformity and
general conformity, neither of which are
germane to this action. Subdivision
(A)(2) of 9VAC5–20–204 defines and
classifies the nonattainment area for the
1997 ozone standard. EPA’s February
18, 2018 final rulemaking action
approved a revision to 9VAC5–20–204
which provided that subdivision (A)(2)
would no longer be effective after April
6, 2015. This is appropriate given the
revocation of the 1997 standard. It is
important to note that subdivision (A)(2)
was not removed. Pursuant to 9VAC5–
80–2000(B), the NNSR requirements of
Article 9 apply to ‘‘. . . nonattainment
areas designated in 9VAC5–20–204
. . .’’ This is the mechanism through
which Virginia’s NNSR requirements
are applied to the various
nonattainment areas in the
Commonwealth. While the
nonattainment area status for the 1997
ozone NAAQS is no longer active or
‘‘effective’’ due to the fact that that
standard has been revoked, the only
‘‘designation’’ and ‘‘classification’’ that
applies to the Washington DC
Nonattainment Area for purposes of the
revoked 1997 ozone NAAQS, and
specifically for purposes of establishing
the NNSR preconstruction permitting
requirements of Article 9, remain on the
books at 9VAC5–20–204. Therefore,
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even if the February 18, 2018 action
might require amendment in light of
South Coast, such a revision would not
impact the effectiveness of EPA’s final
action approving Virginia’s NNSR SIP.
Comment 2: The commenter asserts
that EPA’s proposed approval fails to
ensure compliance with certain other
NNSR requirements in 40 CFR
51.165(a)(1)(v)(E), specifically the
requirement that any significant net
emissions increase of nitrogen oxides
(NOX) be considered significant for
ozone. The commenter points to part b.
of the definition of ‘‘Major
modification’’ in 9VAC5–80–2010
which states: ‘‘[a]ny significant
emissions increase from any emissions
units or net emissions increase at a
source that is considered significant for
volatile organic compounds shall be
considered significant for ozone,’’ and
claims that the lack of similar language
pertaining to NOX creates ambiguity as
to whether the requirements of 40 CFR
51.165(a)(1)(v)(E) are met.
EPA Response 2: EPA disagrees that
there is any ambiguity in Virginia’s
NNSR SIP with regard to the potential
for a significant net increase of NOX to
be considered significant for ozone. The
language identified by the commenter in
part b. of the definition of ‘‘Major
modification’’ in 9VAC5–80–2010 that
is specific to volatile organic
compounds is simply a recitation of
nearly identical language in 40 CFR
51.165(a)(1)(v)(B) which is also specific
to volatile organic compounds and has
no implications with regard to NOX.
Virginia’s May 17, 2017 submittal
identified the provisions of the SIP
which satisfy the requirement of 40 CFR
51.165(a)(1)(v)(E). First, under the
definition of ‘‘regulated NSR pollutant’’
at 9VAC5–80–2010C, subdivisions a.
and c.(1) include NOX and make clear
that NOX is regulated as a precursor to
ozone.9 Additionally, subdivisions a.
and c. of the definition of ‘‘Significant’’
contain the appropriate significance
thresholds for NOX (40 tons per year
(tpy), or 25 tpy in areas designated as
serious or severe nonattainment).
Finally, part a. of the definition of
‘‘Major modification’’ in 9VAC5–80–
2010 states that a major modification
means ‘‘any physical change in or
change in the method of operation of a
major stationary source that would
result in (i) a significant emissions
9 9VAC5–80–2010C in pertinent part reads as
follows: ‘ ‘‘Regulated NSR Pollutant’ means any of
the following: a. Nitrogen oxides or any volatile
organic compound. . . . c. . . . . Precursors
identified for purposes of this article shall be the
following: (1) (1) Volatile organic compounds and
nitrogen oxides are precursors to ozone in all ozone
nonattainment areas.’’
PO 00000
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Fmt 4700
Sfmt 4700
increase of a regulated NSR pollutant;
and (ii) a significant net emissions
increase of that pollutant from the
source.’’ (emphasis added) Because NOX
is clearly included in the definition of
a ‘‘Regulated NSR Pollutant,’’ a
significant emissions increase and a
significant net emissions increase of
NOX would meet the definition of
‘‘Major Modification,’’ thus satisfying
the requirement of 40 CFR
51.165(a)(1)(v)(E).
IV. Final Action
EPA is approving Virginia’s May 17,
2017 SIP revision addressing the NNSR
requirements for the 2008 ozone
NAAQS for the Washington DC
Nonattainment Area. EPA has
concluded that the State’s submission
fulfills the 40 CFR 51.1114 revision
requirement, meets the requirements of
CAA sections 110 and 172 and the
minimum SIP requirements of 40 CFR
51.165, as well as its obligations under
EPA’s February 3, 2017 Findings of
Failure to Submit. See 82 FR 9158.
V. General Information Pertaining to
SIP Submittals From the
Commonwealth of Virginia
In 1995, Virginia adopted legislation
that provides, subject to certain
conditions, for an environmental
assessment (audit) ‘‘privilege’’ for
voluntary compliance evaluations
performed by a regulated entity. The
legislation further addresses the relative
burden of proof for parties either
asserting the privilege or seeking
disclosure of documents for which the
privilege is claimed. Virginia’s
legislation also provides, subject to
certain conditions, for a penalty waiver
for violations of environmental laws
when a regulated entity discovers such
violations pursuant to a voluntary
compliance evaluation and voluntarily
discloses such violations to the
Commonwealth and takes prompt and
appropriate measures to remedy the
violations. Virginia’s Voluntary
Environmental Assessment Privilege
Law, Va. Code Sec. 10.1–1198, provides
a privilege that protects from disclosure
documents and information about the
content of those documents that are the
product of a voluntary environmental
assessment. The Privilege Law does not
extend to documents or information
that: (1) Are generated or developed
before the commencement of a
voluntary environmental assessment; (2)
are prepared independently of the
assessment process; (3) demonstrate a
clear, imminent and substantial danger
to the public health or environment; or
(4) are required by law.
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Federal Register / Vol. 83, No. 174 / Friday, September 7, 2018 / Rules and Regulations
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
programs, since ‘‘no immunity could be
afforded from administrative, civil, or
criminal penalties because granting
such immunity would not be consistent
with federal law, which is one of the
criteria for immunity.’’
Therefore, EPA has determined that
Virginia’s Privilege and Immunity
statutes will not preclude the
Commonwealth from enforcing its NSR
program consistent with the federal
requirements. In any event, because
EPA has also determined that a state
audit privilege and immunity law can
affect only state enforcement and cannot
have any impact on federal enforcement
authorities, EPA may at any time invoke
its authority under the CAA, including,
for example, sections 113, 167, 205, 211
or 213, to enforce the requirements or
prohibitions of the state plan,
independently of any state enforcement
effort. In addition, citizen enforcement
under section 304 of the CAA is
likewise unaffected by this, or any, state
audit privilege or immunity law.
VerDate Sep<11>2014
16:12 Sep 06, 2018
Jkt 244001
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
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Fmt 4700
Sfmt 4700
45355
where EPA or an Indian tribe has
demonstrated that a tribe has
jurisdiction. In those areas of Indian
country, the rule does not have tribal
implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
B. Submission to Congress and the
Comptroller General
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
C. Petitions for Judicial Review
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by November 6, 2018. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this action for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. This action
pertaining to Virginia’s NNSR program
and the 2008 ozone NAAQS may not be
challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone,
Reporting and recordkeeping
requirements, Volatile organic
compounds.
Dated: August 27, 2018.
Cecil Rodrigues,
Acting Regional Administrator, Region III.
40 CFR part 52 is amended as follows:
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Federal Register / Vol. 83, No. 174 / Friday, September 7, 2018 / Rules and Regulations
Authority: 42 U.S.C. 7401 et seq.
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
Subpart VV—Virginia
§ 52.2420
2. Amend § 52.2420, paragraph (e)(1)
table by adding an entry entitled ‘‘2008
8-Hour Ozone NAAQS Nonattainment
■
1. The authority citation for part 52
continues to read as follows:
■
Name of
non-regulatory
SIP revision
*
*
*
*
*
*
*
Virginia portion of the Washington, DC-MD-VA nonattainment area for the 2008 ozone NAAQS (i.e., Arlington
County, Fairfax County, Loudoun County, Prince William
County, Alexandria City, Fairfax City, Falls Church City,
Manassas City, and Manassas Park City) as well as the
portions of Virginia included in the Ozone Transport Region (OTR) (i.e., Arlington County, Fairfax County,
Loudoun County, Prince William County, Stafford County,
Alexandria City, Fairfax City, Falls Church City, Manassas
City, and Manassas Park City).
*
[FR Doc. 2018–19364 Filed 9–6–18; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R01–OAR–2017–0442; FRL–9982–
99—Region 1]
Air Plan Approval; New Hampshire;
Single Source Orders and Revisions to
Definitions
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving State
Implementation Plan (SIP) revisions
submitted by the State of New
Hampshire. The revisions incorporate a
single source order into the New
Hampshire SIP, remove a previouslyapproved order from the SIP, and
approve various definitions used within
New Hampshire’s air pollution control
regulations. This action is being taken in
accordance with the Clean Air Act.
DATES: This rule is effective on October
9, 2018.
ADDRESSES: EPA has established a
docket for this action under Docket
Identification No. EPA–R01–OAR–
2017–0442. 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, i.e., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
daltland on DSKBBV9HB2PROD with RULES
SUMMARY:
VerDate Sep<11>2014
State
submittal
date
Applicable geographic area
*
2008 8-Hour Ozone
NAAQS Nonattainment New
Source Review
Requirements.
16:12 Sep 06, 2018
New Source Review Requirements’’ at
the end of the table to read as follows:
Jkt 244001
*
5/17/17
is not placed on the internet and will be
publicly available only in hard copy
form. Publicly available docket
materials are available at https://
www.regulations.gov or at the U.S.
Environmental Protection Agency, EPA
Region 1 Regional Office, Office of
Ecosystem Protection, Air Quality
Planning Unit, 5 Post Office Square,
Suite 100, Boston, MA. EPA requests
that if at all possible, you contact the
contact listed in the FOR FURTHER
INFORMATION CONTACT section to
schedule your inspection. The Regional
Office’s official hours of business are
Monday through Friday, 8:30 a.m. to
4:30 p.m., excluding legal holidays.
FOR FURTHER INFORMATION CONTACT: Bob
McConnell, Environmental Engineer,
Air Quality Planning Unit, Air Programs
Branch (Mail Code OEP05–02), U.S.
Environmental Protection Agency,
Region 1, 5 Post Office Square, Suite
100, Boston, Massachusetts, 02109–
3912; (617) 918–1046;
mcconnell.robert@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA.
Table of Contents
I. Background and Purpose
II. Final Action
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews
I. Background and Purpose
On July 6, 2018 (83 FR 31513), EPA
published a Notice of Proposed
Rulemaking (NPRM) for the State of
New Hampshire. The NPRM proposed
approval of revisions to New
Hampshire’s SIP consisting of an order
PO 00000
Frm 00032
Fmt 4700
Sfmt 4700
*
Identification of plan.
*
*
(e) * * *
(1) * * *
*
EPA approval date
*
Additional
explanation
*
9/7/17, [Insert Federal Register citation].
*
establishing reasonably available control
technology (RACT) requirements for the
Diacom Corporation, removal from the
SIP of a previously-approved RACT
order for the Kalwall Corporation, and
a request to revise a few definitions
used within the State’s air pollution
control regulations. Other specific
requirements of New Hampshire’s
RACT orders and revised definitions
and the rationale for EPA’s proposed
action are explained in the NPRM and
will not be restated here.
We received a number of anonymous
comments that address subjects outside
the scope of our proposed action, do not
explain (or provide a legal basis for)
how the proposed action should differ
in any way, and make no specific
mention of the substantive aspects of
the proposed action. Consequently,
these comments are not germane to this
rulemaking and require no further
response.
II. Final Action
EPA is approving an order
establishing RACT for the Diacom
Corporation, removal from the SIP of a
previously-approved RACT order for the
Kalwall Corporation, and a revision to
eleven definitions used within the
State’s air pollution control regulations
as revisions to the New Hampshire SIP.
III. 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
incorporation by reference of revisions
located within New Hampshire’s Env-A,
Rules Governing the Control of Air
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]]>Agencies
[Federal Register Volume 83, Number 174 (Friday, September 7, 2018)]
[Rules and Regulations]
[Pages 45351-45356]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-19364]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2017-0399; FRL-9983-33--Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Nonattainment New Source Review Requirements for the 2008 8-
Hour Ozone Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is approving a
revision to the Commonwealth of Virginia's state implementation plan
(SIP). The revision is in response to EPA's February 3, 2017 Findings
of Failure to Submit for various requirements relating to the 2008 8-
hour ozone national ambient air quality standards (NAAQS). This SIP
revision is specific to nonattainment new source review (NNSR)
requirements. EPA is approving this revision in accordance with the
requirements of the Clean Air Act (CAA).
DATES: This final rule is effective on October 9, 2018.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2017-0399. All documents in the docket are listed on
the https://www.regulations.gov website. Although listed in the index,
some information is not publicly available, e.g., confidential business
information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only in hard
copy form. Publicly available docket materials are available through
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: David Talley, (215) 814-2117, or by
email at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On April 4, 2018 (83 FR 14386), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Virginia. In the NPR, EPA
proposed approval of the SIP submitted in response to EPA's final 2008
8-hour ozone NAAQS Findings of Failure to Submit for NNSR requirements.
See 82 FR 9158 (February 3, 2017). Specifically, Virginia is certifying
that its existing NNSR program, covering the Washington, DC
nonattainment area (which includes Alexandria City, Arlington County,
Fairfax County, Fairfax City, Falls Church City, Loudoun County,
Manassas City, Manassas Park City, and Prince William County in
Virginia) (hereafter, Washington, DC Nonattainment Area) for the 2008
8-hour ozone NAAQS, is at least as stringent as the requirements at 40
CFR 51.165, as amended by the final rule entitled ``Implementation of
the 2008 National Ambient Air Quality Standards for Ozone: State
Implementation Plan Requirements'' (SIP Requirements Rule),
[[Page 45352]]
for ozone and its precursors.\1\ See 80 FR 12264 (March 6, 2015). The
formal SIP revision was submitted by the Virginia Department of
Environmental Quality (VADEQ) on behalf of the Commonwealth of Virginia
on May 11, 2017.
---------------------------------------------------------------------------
\1\ The SIP Requirements Rule addresses a range of nonattainment
area SIP requirements for the 2008 8-hour ozone NAAQS, including
requirements pertaining to attainment demonstrations, reasonable
further progress (RFP), reasonably available control technology,
reasonably available control measures, major new source review,
emission inventories, and the timing of SIP submissions and of
compliance with emission control measures in the SIP. The rule also
revokes the 1997 ozone NAAQS and establishes anti-backsliding
requirements. On February 16, 2018, the United States Court of
Appeals for the District of Columbia Circuit (D.C. Circuit) issued
an opinion granting a number of challenges to the EPA's SIP
Requirements Rule. South Coast Air Quality Mgmt. Dist. v. EPA, 882
F.3d 1138 (D.C. Cir. 2018). Specifically, as relevant here, the
Court vacated the ``redesignation substitute'' provision in the
implementation rule, which allowed states a way to satisfy anti-
backsliding requirements for revoked standards. EPA and South Coast
Air Quality Management District filed petitions for rehearing and
those petitions are pending before the Court.
---------------------------------------------------------------------------
On March 12, 2008, EPA promulgated a revised 8-hour ozone NAAQS of
0.075 parts per million (ppm). See 73 FR 16436 (March 27, 2008). Under
EPA's regulations at 40 CFR 50.15, the 2008 8-hour ozone NAAQS is
attained when the three-year average of the annual fourth-highest daily
maximum 8-hour average ambient air quality ozone concentration is less
than or equal to 0.075 ppm.
Upon promulgation of a new or revised NAAQS, the CAA requires EPA
to designate as nonattainment any area that is violating the NAAQS
based on the three most recent years of ambient air quality data
available at the conclusion of the designation process. The Washington,
DC Nonattainment Area was classified as a marginal nonattainment area
for the 2008 8-hour ozone NAAQS on May 21, 2012 (effective July 20,
2012) using 2008-2010 ambient air quality data. See 77 FR 30088. On
March 6, 2015, EPA issued the final SIP Requirements Rule, which
establishes the requirements that state, tribal, and local air quality
management agencies must meet as they develop implementation plans for
areas where air quality exceeds the 2008 8-hour ozone NAAQS. See 80 FR
12264. Areas that were designated as marginal ozone nonattainment areas
were required to attain the 2008 8-hour ozone NAAQS no later than July
20, 2015, based on 2012-2014 monitoring data. The Washington, DC
Nonattainment Area did not attain the 2008 8-hour ozone NAAQS by July
20, 2015; however, this area did meet the CAA section 181(a)(5)
criteria, as interpreted in 40 CFR 51.1107, for a one-year attainment
date extension. See 81 FR 26697 (May 4, 2016). Therefore, on April 11,
2016, the EPA Administrator signed a final rule extending the
Washington, DC Nonattainment Area 2008 8-hour ozone NAAQS attainment
date from July 20, 2015 to July 20, 2016.\2\
---------------------------------------------------------------------------
\2\ EPA finalized approval of a Determination of Attainment
(DOA) for the 2008 8-hour ozone NAAQS for the Washington, DC
Nonattainment Area on November 14, 2017. This final action was based
on complete, certified, and quality assured ambient air quality
monitoring data for the 2013-2015 monitoring period. See 82 FR 52651
(November 14, 2017). It should be noted that a DOA does not
alleviate the need for Virginia to certify that their existing SIP
approved NNSR program is as stringent as the requirements at 40 CFR
51.165, as NNSR applies in nonattainment areas until an area has
been redesignated to attainment.
---------------------------------------------------------------------------
Based on initial nonattainment designations for the 2008 8-hour
ozone standard, as well as the March 6, 2015 final SIP Requirements
Rule, Virginia was required to develop a SIP revision addressing
certain CAA requirements for the Washington, DC Nonattainment Area, and
submit to EPA a NNSR Certification SIP or SIP revision no later than 36
months after the effective date of area designations for the 2008 8-
hour ozone NAAQS (i.e., July 20, 2015).\3\ See 80 FR 12264 (March 6,
2015). EPA is proposing to approve Virginia's May 11, 2017 NNSR
Certification SIP revision. EPA's analysis of how this SIP revision
addresses the NNSR requirements for the 2008 8-hour ozone NAAQS is
provided in Section II.
---------------------------------------------------------------------------
\3\ Neither Virginia's obligation to submit the NNSR
Certification SIP nor the requirements governing that submission
were affected by the D.C. Circuit's February 16, 2018 decision on
portions of the SIP Requirements Rule in South Coast Air Quality
Mgmt. Dist. v. EPA.
---------------------------------------------------------------------------
II. Summary of SIP Revision and EPA Analysis
This rulemaking action is specific to Virginia's NNSR requirements.
NNSR is a preconstruction review permit program that applies to new
major stationary sources or major modifications at existing sources
located in a nonattainment area.\4\ The specific NNSR requirements for
the 2008 8-hour ozone NAAQS are located in 40 CFR 51.160-165. As set
forth in the SIP Requirements Rule, for each nonattainment area, a NNSR
plan or plan revision was due no later than 36 months after the
effective date of area designations for the 2008 8-hour ozone standard
(i.e., July 20, 2015).\5\
---------------------------------------------------------------------------
\4\ See CAA sections 172(c)(5), 173 and 182.
\5\ With respect to states with nonattainment areas subject to a
finding of failure to submit NNSR SIP revisions, such revisions
would no longer be required if the area were redesignated to
attainment. The CAA's prevention of significant deterioration (PSD)
program requirements apply in lieu of NNSR after an area is
redesignated to attainment. For areas outside the OTR, NNSR
requirements do not apply in areas designated as attainment.
---------------------------------------------------------------------------
The minimum SIP requirements for NNSR permitting programs for the
2008 8-hour ozone NAAQS are located in 40 CFR 51.165. See 40 CFR
51.1114. These NNSR program requirements include those promulgated in
the ``Phase 2 Rule'' implementing the 1997 8-hour ozone NAAQS (75 FR
71018 (November 29, 2005)) and the SIP Requirements Rule implementing
the 2008 8-hour ozone NAAQS. Under the Phase 2 Rule, the SIP for each
ozone nonattainment area must contain NNSR provisions that: Set major
source thresholds for oxides of nitrogen (NOX) and volatile
organic compounds (VOC) pursuant to 40 CFR 51.165(a)(1)(iv)(A)(1)(i)-
(iv) and (2); classify physical changes as a major source if the change
would constitute a major source by itself pursuant to 40 CFR
51.165(a)(1)(iv)(A)(3); consider any significant net emissions increase
of NOX as a significant net emissions increase for ozone
pursuant to 40 CFR 51.165(a)(1)(v)(E); consider certain increases of
VOC emissions in extreme ozone nonattainment areas as a significant net
emissions increase and a major modification for ozone pursuant to 40
CFR 51.165(a)(1)(v)(F); set significant emissions rates for VOC and
NOX as ozone precursors pursuant to 40 CFR
51.165(a)(1)(x)(A)-(C) and (E); contain provisions for emissions
reductions credits pursuant to 40 CFR 51.165(a)(3)(ii)(C)(1)-(2);
provide that the requirements applicable to VOC also apply to
NOX pursuant to 40 CFR 51.165(a)(8); and set offset ratios
for VOC and NOX pursuant to 40 CFR 51.165(a)(9)(i)-(iii)
(renumbered as (a)(9)(ii)-(iv) under the SIP Requirements Rule for the
2008 8-hour ozone NAAQS). Under the SIP Requirements Rule for the 2008
8-hour ozone NAAQS, the SIP for each ozone nonattainment area
designated nonattainment for the 2008 8-hour ozone NAAQS and designated
nonattainment for the 1997 ozone NAAQS on April 6, 2015, must also
contain NNSR provisions that include the anti-backsliding requirements
at 40 CFR 51.1105. See 40 CFR 51.165(a)(12).
Virginia's SIP-approved NNSR program is implemented through Article
9, Permits for Major Stationary Sources and Major Modifications
Locating in Nonattainment Areas or the Ozone Transport Region, in the
Virginia Administrative Code (VAC), 9VAC5-80--Permits for Stationary
Sources. In its May 11, 2017 SIP revision, Virginia certifies that the
version of 9VAC5-80
[[Page 45353]]
in the SIP is at least as stringent as the federal NNSR requirements
for the Washington, DC Nonattainment Area. EPA last approved revisions
to Virginia's major NNSR SIP on August 28, 2017. In that action, EPA
approved revisions to Virginia's SIP which made Virginia's NNSR program
consistent with federal requirements. Additionally, those revisions
corrected a deficiency which had been grounds for limited approval of
Virginia's program. EPA found, therefore, that Virginia's program met
all CAA requirements and was fully approvable. See 82 FR 40703.
EPA notes that neither 9VAC5-80 nor Virginia's approved SIP have
the regulatory provision for any emissions change of VOC in extreme
nonattainment areas, specified in 40 CFR 51.165(a)(1)(v)(F), because
Virginia has never had an area designated extreme nonattainment for any
of the ozone NAAQS. Nonetheless, the Virginia SIP is not required to
have this requirement for VOC in extreme nonattainment areas until such
time as Virginia has an extreme ozone nonattainment area. In Virginia's
May 11, 2017 SIP revision, VADEQ asserted that anti-backsliding
provisions do not apply to any area within Virginia, including the
northern Virginia/Metropolitan Washington, DC area, because Virginia
submitted to EPA a final ``redesignation substitute'' request for the
1997 ozone NAAQS for the Washington, DC area on April 29, 2016. As
noted, in its February 16, 2018 decision, the South Coast Court vacated
the provision in the implementation rule for the 2008 ozone NAAQS that
created the ``redesignation substitute.'' The Court disagreed with
EPA's interpretation of the Clean Air Act that once a standard is
revoked, the Agency no longer has authority to change designations or
classifications for that revoked standard. The Court ruled that in
order for 1997 ozone nonattainment areas to be relieved from anti-
backsliding requirements under the old revoked standard, those areas
would need to seek, and EPA would need to approve, full statutory
redesignations to attainment in compliance with CAA section 107(d)(3).
The Court thus vacated the ``redesignation substitute,'' because it
held that areas could not receive the benefits of a redesignation
without meeting all of the elements in CAA section 107(d)(3)(E).
Given the D.C. Circuit's vacatur of the redesignation substitute
mechanism in South Coast, EPA cannot approve Virginia's redesignation
substitute request. Therefore, until the Washington, DC Nonattainment
Area is redesignated under section 107(d)(3), the state remains
required to comply with the anti-backsliding provisions found in 40 CFR
51.165(a)(12) and located in 9VAC5-80 of its SIP which applied to NSR
requirements for the 1997 ozone NAAQS. EPA finds that the Virginia SIP
presently includes all required major stationary source thresholds and
emissions offset ratios for NSR purposes which were established for the
SIP for Virginia's 1997 8-hour ozone NAAQS nonattainment designation.
See 82 FR 40703 (finding Virginia's NNSR program consistent with all
federal requirements in August 2017).
Thus, EPA finds that Virginia's SIP includes relevant and required
anti-backsliding requirements. Virginia has not changed these major
stationary source threshold and offset provisions in 9VAC5-80-2010 C,
and furthermore, they remain in Virginia's federally-approved SIP
unless and until EPA approves a full redesignation request in
accordance with CAA section 107.\6\ EPA expects that VADEQ will
continue to implement its NNSR program consistently with its approved
SIP for major stationary source thresholds and emission offset ratios.
---------------------------------------------------------------------------
\6\ Under the 1997 8-hour ozone NAAQS, the Washington, DC Area
was classified as moderate nonattainment.
---------------------------------------------------------------------------
EPA has not amended the SIP provisions related to 9VAC5-80 since
the August 28, 2017 rulemaking where EPA last approved Virginia's NNSR
provisions as meeting CAA requirements for a NNSR program. The SIP-
approved version of 9VAC5-80 covers Virginia's portion of the
Washington, DC Nonattainment Area and remains adequate to meet all
applicable NNSR requirements for the 2008 8-hour ozone NAAQS in 40 CFR
51.165, the Phase 2 Rule, and the SIP Requirements Rule.
III. Public Comments and EPA Response
EPA received a total of sixteen sets of comments on the April 4,
2018 NPR. Fifteen of those did not concern any of the specific issues
raised in the NPR, nor did they address EPA's rationale for the
proposed approval of VADEQ's submittal. Therefore, EPA is not
responding to those comments. EPA did receive one set of relevant
comments. Those comments and EPA's responses are discussed in this
Section. All of the comments received are included in the docket for
this rulemaking action.
Comment 1: The commenter asserts that EPA's proposed approval
failed to adequately address whether Virginia's SIP ensures that the
CAA's anti-backsliding requirements are met. In support of this claim,
the commenter first points to Virginia's May 11, 2017 submittal in
which VADEQ claims that anti-backsliding provisions don't apply because
Virginia submitted a redesignation substitute request on April 26,
2016, and asserts that redesignation substitutes were ruled unlawful by
the D.C. Circuit in the South Coast decision. Second, the commenter
takes issue with EPA's assertion in the NPR that Virginia's NNSR SIP
contains all of the requirements necessary to implement the 2008 8-hour
ozone NAAQS, citing EPA's failure to address a February 18, 2018
approval action related to the implementation of the 2008 ozone NAAQS
and the revocation of the 1997 ozone NAAQS.\7\ The commenter asserts
that until EPA addresses how ``the SIP as a whole,'' (including the
revisions from EPA's February 18, 2018 approval) meets the anti-
backsliding requirements, approval of Virginia's May 17, 2017 submittal
would be arbitrary and unlawful.
---------------------------------------------------------------------------
\7\ See 83 FR 7610.
---------------------------------------------------------------------------
EPA Response 1: The anti-backsliding requirements at both 40 CFR
51.165(a)(12) and 51.1105 provide that the minimum SIP elements for
NNSR outlined at 40 CFR 51.165 continue to apply in areas designated as
nonattainment for the 1997 ozone NAAQS that had not been redesignated
to attainment by EPA prior to the April 6, 2015 revocation date of the
1997 NAAQS. EPA agrees with the commenter that VADEQ's assertion that
the April 26, 2016 redesignation substitute request relieves Virginia
of the CAA's anti-backsliding requirements is not correct, first
because EPA never acted on that request and second because even if the
Agency had approved such request, the South Coast Court held that
redesignation substitutes cannot relieve nonattainment areas of anti-
backsliding requirements. EPA clearly and unambiguously stated in the
NPR (and restated in Section II of this document): ``Virginia remains
required to comply with the anti-backsliding provisions found in 40 CFR
51.165(a)(12) and located in 9VAC5-80 of its SIP which applied to NSR
requirements for the 1997 ozone NAAQS.'' \8\ EPA further stated that
Virginia is expected to implement its NNSR program consistent with its
approved SIP (which does contain the CAA's anti-backsliding
requirements) unless and until EPA promulgates a full redesignation of
the DC Area for the
[[Page 45354]]
2008 ozone NAAQS in accordance with CAA section 107(d)(3).
---------------------------------------------------------------------------
\8\ See 83 FR 14388
---------------------------------------------------------------------------
With respect to the commenter's assertion that EPA must evaluate
the SIP as a whole and in light of the February 18, 2018 approval
action, in order to grant approval to Virginia's May 17, 2017
submittal, EPA disagrees. EPA clearly stated in the NPR, and reiterates
in this action, this action is specific to the NNSR program
requirements of 40 CFR 51.165, which are codified by Virginia under
Article 9 of 9VAC5-80. EPA's February 18, 2018 approval action did not
revise or address any of the NNSR requirements in 9VAC5-80 and is
therefore irrelevant to this action. EPA is not obligated, when
reviewing each SIP submission, to re-review all prior SIP submissions
already acted on. Such an interpretation of the CAA would subject the
Agency to never-ending review of the state's implementation plan.
The February 18, 2018 action approved revisions to 9VAC5-20-204,
9VAC5-30-55, 9VAC5-151-20, and 9VAC5-160-30. The amendment to 9VAC5-30-
55 added text stating that the primary and secondary ambient air
quality standard of 0.08 ppm shall no longer apply after April 6, 2015,
consistent with EPA's revocation of the 1997 standard. The revisions to
9VAC5-151-20 and 9VAC5-160-30 were related to transportation conformity
and general conformity, neither of which are germane to this action.
Subdivision (A)(2) of 9VAC5-20-204 defines and classifies the
nonattainment area for the 1997 ozone standard. EPA's February 18, 2018
final rulemaking action approved a revision to 9VAC5-20-204 which
provided that subdivision (A)(2) would no longer be effective after
April 6, 2015. This is appropriate given the revocation of the 1997
standard. It is important to note that subdivision (A)(2) was not
removed. Pursuant to 9VAC5-80-2000(B), the NNSR requirements of Article
9 apply to ``. . . nonattainment areas designated in 9VAC5-20-204 . .
.'' This is the mechanism through which Virginia's NNSR requirements
are applied to the various nonattainment areas in the Commonwealth.
While the nonattainment area status for the 1997 ozone NAAQS is no
longer active or ``effective'' due to the fact that that standard has
been revoked, the only ``designation'' and ``classification'' that
applies to the Washington DC Nonattainment Area for purposes of the
revoked 1997 ozone NAAQS, and specifically for purposes of establishing
the NNSR preconstruction permitting requirements of Article 9, remain
on the books at 9VAC5-20-204. Therefore, even if the February 18, 2018
action might require amendment in light of South Coast, such a revision
would not impact the effectiveness of EPA's final action approving
Virginia's NNSR SIP.
Comment 2: The commenter asserts that EPA's proposed approval fails
to ensure compliance with certain other NNSR requirements in 40 CFR
51.165(a)(1)(v)(E), specifically the requirement that any significant
net emissions increase of nitrogen oxides (NOX) be
considered significant for ozone. The commenter points to part b. of
the definition of ``Major modification'' in 9VAC5-80-2010 which states:
``[a]ny significant emissions increase from any emissions units or net
emissions increase at a source that is considered significant for
volatile organic compounds shall be considered significant for ozone,''
and claims that the lack of similar language pertaining to
NOX creates ambiguity as to whether the requirements of 40
CFR 51.165(a)(1)(v)(E) are met.
EPA Response 2: EPA disagrees that there is any ambiguity in
Virginia's NNSR SIP with regard to the potential for a significant net
increase of NOX to be considered significant for ozone. The
language identified by the commenter in part b. of the definition of
``Major modification'' in 9VAC5-80-2010 that is specific to volatile
organic compounds is simply a recitation of nearly identical language
in 40 CFR 51.165(a)(1)(v)(B) which is also specific to volatile organic
compounds and has no implications with regard to NOX.
Virginia's May 17, 2017 submittal identified the provisions of the SIP
which satisfy the requirement of 40 CFR 51.165(a)(1)(v)(E). First,
under the definition of ``regulated NSR pollutant'' at 9VAC5-80-2010C,
subdivisions a. and c.(1) include NOX and make clear that
NOX is regulated as a precursor to ozone.\9\ Additionally,
subdivisions a. and c. of the definition of ``Significant'' contain the
appropriate significance thresholds for NOX (40 tons per
year (tpy), or 25 tpy in areas designated as serious or severe
nonattainment). Finally, part a. of the definition of ``Major
modification'' in 9VAC5-80-2010 states that a major modification means
``any physical change in or change in the method of operation of a
major stationary source that would result in (i) a significant
emissions increase of a regulated NSR pollutant; and (ii) a significant
net emissions increase of that pollutant from the source.'' (emphasis
added) Because NOX is clearly included in the definition of
a ``Regulated NSR Pollutant,'' a significant emissions increase and a
significant net emissions increase of NOX would meet the
definition of ``Major Modification,'' thus satisfying the requirement
of 40 CFR 51.165(a)(1)(v)(E).
---------------------------------------------------------------------------
\9\ 9VAC5-80-2010C in pertinent part reads as follows: `
``Regulated NSR Pollutant' means any of the following: a. Nitrogen
oxides or any volatile organic compound. . . . c. . . . . Precursors
identified for purposes of this article shall be the following: (1)
(1) Volatile organic compounds and nitrogen oxides are precursors to
ozone in all ozone nonattainment areas.''
---------------------------------------------------------------------------
IV. Final Action
EPA is approving Virginia's May 17, 2017 SIP revision addressing
the NNSR requirements for the 2008 ozone NAAQS for the Washington DC
Nonattainment Area. EPA has concluded that the State's submission
fulfills the 40 CFR 51.1114 revision requirement, meets the
requirements of CAA sections 110 and 172 and the minimum SIP
requirements of 40 CFR 51.165, as well as its obligations under EPA's
February 3, 2017 Findings of Failure to Submit. See 82 FR 9158.
V. General Information Pertaining to SIP Submittals From the
Commonwealth of Virginia
In 1995, Virginia adopted legislation that provides, subject to
certain conditions, for an environmental assessment (audit)
``privilege'' for voluntary compliance evaluations performed by a
regulated entity. The legislation further addresses the relative burden
of proof for parties either asserting the privilege or seeking
disclosure of documents for which the privilege is claimed. Virginia's
legislation also provides, subject to certain conditions, for a penalty
waiver for violations of environmental laws when a regulated entity
discovers such violations pursuant to a voluntary compliance evaluation
and voluntarily discloses such violations to the Commonwealth and takes
prompt and appropriate measures to remedy the violations. Virginia's
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and
information about the content of those documents that are the product
of a voluntary environmental assessment. The Privilege Law does not
extend to documents or information that: (1) Are generated or developed
before the commencement of a voluntary environmental assessment; (2)
are prepared independently of the assessment process; (3) demonstrate a
clear, imminent and substantial danger to the public health or
environment; or (4) are required by law.
[[Page 45355]]
On January 12, 1998, the Commonwealth of Virginia Office of the
Attorney General provided a legal opinion that states that the
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege
to documents and information ``required by law,'' including documents
and information ``required by federal law to maintain program
delegation, authorization or approval,'' since Virginia must ``enforce
federally authorized environmental programs in a manner that is no less
stringent than their federal counterparts. . . .'' The opinion
concludes that ``[r]egarding Sec. 10.1-1198, therefore, documents or
other information needed for civil or criminal enforcement under one of
these programs could not be privileged because such documents and
information are essential to pursuing enforcement in a manner required
by federal law to maintain program delegation, authorization or
approval.''
Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that
``[t]o the extent consistent with requirements imposed by federal
law,'' any person making a voluntary disclosure of information to a
state agency regarding a violation of an environmental statute,
regulation, permit, or administrative order is granted immunity from
administrative or civil penalty. The Attorney General's January 12,
1998 opinion states that the quoted language renders this statute
inapplicable to enforcement of any federally authorized programs, since
``no immunity could be afforded from administrative, civil, or criminal
penalties because granting such immunity would not be consistent with
federal law, which is one of the criteria for immunity.''
Therefore, EPA has determined that Virginia's Privilege and
Immunity statutes will not preclude the Commonwealth from enforcing its
NSR program consistent with the federal requirements. In any event,
because EPA has also determined that a state audit privilege and
immunity law can affect only state enforcement and cannot have any
impact on federal enforcement authorities, EPA may at any time invoke
its authority under the CAA, including, for example, sections 113, 167,
205, 211 or 213, to enforce the requirements or prohibitions of the
state plan, independently of any state enforcement effort. In addition,
citizen enforcement under section 304 of the CAA is likewise unaffected
by this, or any, state audit privilege or immunity law.
VI. Statutory and Executive Order Reviews
A. General Requirements
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866.
does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land as
defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian
tribe has demonstrated that a tribe has jurisdiction. In those areas of
Indian country, the rule does not have tribal implications and will not
impose substantial direct costs on tribal governments or preempt tribal
law as specified by Executive Order 13175 (65 FR 67249, November 9,
2000).
B. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
C. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by November 6, 2018. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action pertaining to Virginia's NNSR program and the 2008
ozone NAAQS may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
Dated: August 27, 2018.
Cecil Rodrigues,
Acting Regional Administrator, Region III.
40 CFR part 52 is amended as follows:
[[Page 45356]]
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart VV--Virginia
0
2. Amend Sec. 52.2420, paragraph (e)(1) table by adding an entry
entitled ``2008 8-Hour Ozone NAAQS Nonattainment New Source Review
Requirements'' at the end of the table to read as follows:
Sec. 52.2420 Identification of plan.
* * * * *
(e) * * *
(1) * * *
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State
Name of non-regulatory SIP revision Applicable geographic area submittal EPA approval date Additional explanation
date
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
2008 8-Hour Ozone NAAQS Nonattainment Virginia portion of the Washington, DC- 5/17/17 9/7/17, [Insert Federal ..................................
New Source Review Requirements. MD-VA nonattainment area for the 2008 Register citation].
ozone NAAQS (i.e., Arlington County,
Fairfax County, Loudoun County, Prince
William County, Alexandria City,
Fairfax City, Falls Church City,
Manassas City, and Manassas Park City)
as well as the portions of Virginia
included in the Ozone Transport Region
(OTR) (i.e., Arlington County, Fairfax
County, Loudoun County, Prince William
County, Stafford County, Alexandria
City, Fairfax City, Falls Church City,
Manassas City, and Manassas Park City).
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* * * * *
[FR Doc. 2018-19364 Filed 9-6-18; 8:45 am]
BILLING CODE 6560-50-P
