83 FR 10791 - Approval and Promulgation of Air Quality Implementation Plans; Virginia; Removal of Clean Air Interstate Rule (CAIR) Trading Programs

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 83, Issue 49 (March 13, 2018)

Page Range		10791-10796
FR Document		2018-04935
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 EPA- administered 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 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 (NO<INF>X</INF>), ozone season NO<INF>X</INF>, and annual sulfur dioxide (SO<INF>2</INF>) 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).
Federal Register, Volume 83 Issue 49 (Tuesday, March 13, 2018)
[Federal Register Volume 83, Number 49 (Tuesday, March 13, 2018)]
[Rules and Regulations]
[Pages 10791-10796]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-04935]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a state 
implementation plan (SIP) revision 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 EPA-
administered 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 
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

[[Page 10792]]

Number EPA-R03-OAR-2017-0215. All documents in the docket are listed on 
the http://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 
http://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

    In 2005, EPA promulgated CAIR (70 FR 25162, May 12, 2005) to 
address transported emissions that significantly contributed to 
downwind states' nonattainment and interfered with maintenance of the 
1997 ozone and fine particulate matter (PM2.5) national 
ambient air quality standards (NAAQS). CAIR required 28 states, 
including Virginia, to revise their SIPs to reduce emissions of 
NOX and SO2, precursors to the formation of 
ambient ozone and PM2.5. Under CAIR, EPA provided model 
state rules for separate cap-and-trade programs for annual 
NOX, ozone season NOX, and annual SO2. 
The annual NOX and annual SO2 trading programs 
were designed to address transported PM2.5 pollution, while 
the ozone season NOX trading program was designed to address 
transported ozone pollution. EPA also promulgated CAIR federal 
implementation plans (FIPs) with CAIR federal trading programs that 
would address each state's CAIR requirements in the event that a CAIR 
SIP for the state was not submitted or approved (71 FR 25328, April 28, 
2006). Generally, both the model state rules and the federal trading 
program rules applied only to electric generating units (EGUs), but in 
the case of the model state rule and federal trading program for ozone 
season NOX emissions, each state had the option to submit a 
CAIR SIP revision that expanded applicability to include certain non-
EGUs \1\ that formerly participated in the NOX Budget 
Trading Program under the NOX SIP Call.\2\ Virginia 
submitted, and EPA approved, a CAIR SIP revision based on the model 
state rules establishing CAIR state trading programs for annual 
SO2, annual NOX, and ozone season NOX 
emissions, with certain non-EGUs included in the state's CAIR ozone 
season NOX trading program. See 72 FR 73602 (December 28, 
2007). Because Virginia's NOX ozone season trading program 
under CAIR included non-EGUs that previously participated in the 
NOX budget trading program under the NOX SIP 
Call, this CAIR program satisfied Virginia's obligations under the 
NOX SIP Call as to both EGUs and non-EGUs. However, even 
though the NOX SIP Call requirements were being met by the 
CAIR program, Virginia's state NOX Budget Trading Program 
rule also remains part of the state's approved SIP. See 76 FR 68638 
(November 7, 2011).
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    \1\ These non-EGUs are generally defined in the NOX 
SIP Call as stationary, fossil fuel-fired boilers, combustion 
turbines, or combined cycle systems with a maximum design heat input 
greater than 250 million British thermal units per hour (MMBtu/hr).
    \2\ In October 1998, EPA finalized the ``Finding of Significant 
Contribution and Rulemaking for Certain States in the Ozone 
Transport Assessment Group Region for Purposes of Reducing Regional 
Transport of Ozone''--commonly called the NOX SIP Call. 
See 63 FR 57356 (October 27, 1998).
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    The United States Court of Appeals for the District of Columbia 
Circuit (D.C. Circuit) initially vacated CAIR in 2008, but ultimately 
remanded the rule to EPA without vacatur to preserve the environmental 
benefits provided by CAIR. North Carolina v. EPA, 531 F.3d 896, 
modified, 550 F.3d 1176 (2008). The ruling allowed CAIR to remain in 
effect temporarily until a replacement rule consistent with the court's 
opinion was developed. While EPA worked on developing a replacement 
rule, the CAIR program continued as planned with the NOX 
annual and ozone season programs beginning in 2009 and the 
SO2 annual program beginning in 2010.
    On August 8, 2011 (76 FR 48208), acting on the D.C. Circuit's 
remand, EPA promulgated CSAPR to replace CAIR in order to address the 
interstate transport of emissions contributing to nonattainment and 
interfering with maintenance of the two air quality standards covered 
by CAIR as well as the 2006 PM2.5 NAAQS. CSAPR required EGUs 
in affected states, including Virginia, to participate in federal 
trading programs to reduce annual SO2, annual 
NOX, and/or ozone season NOX emissions. The rule 
also contained provisions that would sunset CAIR-related obligations on 
a schedule coordinated with the implementation of the CSAPR compliance 
requirements. CSAPR was intended to become effective January 1, 2012; 
however, the timing of CSAPR's implementation was impacted by a number 
of court actions.
    Numerous parties filed petitions for review of CSAPR in the D.C. 
Circuit, and on December 30, 2011, the D.C. Circuit stayed CSAPR prior 
to its implementation and ordered EPA to continue administering CAIR on 
an interim basis. On August 21, 2012, the D.C. Circuit issued its 
ruling, vacating and remanding CSAPR to EPA and ordering continued 
implementation of CAIR. EME Homer City Generation, L.P. v. EPA, 696 
F.3d 7, 38 (D.C. Cir. 2012). The D.C. Circuit's vacatur of CSAPR was 
reversed by the United States Supreme Court on April 29, 2014, and the 
case was remanded to the D.C. Circuit to resolve remaining issues in 
accordance with the Supreme Court's ruling. EPA v. EME Homer City 
Generation, L.P., 134 S. Ct. 1584 (2014). On remand, the D.C. Circuit 
affirmed CSAPR in most respects but remanded certain state emissions 
budgets, including Virginia's Phase 2 budget for ozone season 
NOX emissions. EME Homer City Generation, L.P. v. EPA (EME 
Homer City II), 795 F.3d 118, 138 (D.C. Cir. 2015).
    Throughout the initial round of D.C. Circuit proceedings and the 
ensuing Supreme Court proceedings, the stay on CSAPR remained in place, 
and EPA continued to implement CAIR. Following the April 2014 Supreme 
Court decision, EPA filed a motion asking the D.C. Circuit to lift the 
stay in order to allow CSAPR to replace CAIR in an equitable and 
orderly manner while further D.C. Circuit proceedings were held to 
resolve remaining claims from petitioners. Additionally, EPA's motion 
requested delay, by three years, of all CSAPR compliance deadlines that 
had not passed as of the approval date of the stay. On October 23, 
2014, the D.C. Circuit granted EPA's request, and on December 3, 2014 
(79 FR 71663), in an interim final rule, EPA set the updated effective 
date of CSAPR as January 1, 2015, and delayed the implementation of 
CSAPR Phase I to 2015 and CSAPR Phase 2 to 2017. In accordance with the 
interim final rule, EPA stopped administering the CAIR state and 
federal trading programs with respect to emissions occurring after 
December 31, 2014, and EPA began implementing CSAPR on January 1, 
2015.\3\
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    \3\ EPA solicited comment on the interim final rule and 
subsequently issued a final rule affirming the amended compliance 
schedule after consideration of comments received. 81 FR 13275 
(March 14, 2016).
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    In October 2016, EPA promulgated the CSAPR Update (81 FR 74504, 
October 26, 2016) to address interstate transport of ozone pollution 
with respect to the 2008 ozone NAAQS, and issued FIPs that established 
or updated ozone season NOX budgets for 22 states,

[[Page 10793]]

including Virginia. Starting in January 2017, the CSAPR Update budgets 
were implemented via modifications to the CSAPR NOX ozone 
season allowance trading program that was established under the 
original CSAPR.
    As noted above, starting in January 2015, the CSAPR federal trading 
programs for annual NOX, ozone season NOX, and 
annual SO2 were applicable in Virginia. Thus, since January 
1, 2015, EPA has not administered the CAIR state trading programs for 
annual NOX, ozone season NOX, or annual 
SO2 emissions established by the Virginia regulations.
    On January 5, 2017, the Commonwealth of Virginia, through the 
Virginia Department of Environmental Quality (VADEQ), formally 
submitted a SIP revision (Revision D16) that requests removal from its 
SIP of Virginia Administrative Code regulations including 9 VAC 5 
Chapter 140: Part II--NOX Annual Trading Program; Part III--
NOX Ozone Season Trading Program; and Part IV--
SO2 Annual Trading Program (Sections 5-140-1010 through 5-
140-3880), which implemented the CAIR annual NOX, ozone 
season NOX, and annual SO2 trading programs in 
Virginia.\4\
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    \4\ EPA notes that Virginia's January 5, 2017 SIP revision does 
not request removal of the regulations under 9 VAC 5 Chapter 140: 
Part I--NOX Budget Trading Program, which include 
regulations addressing the continuous emission monitoring 
requirements of 40 CFR part 75 for non-EGUs covered by the 
NOX SIP Call (Part 75 rule). Therefore, this rulemaking 
action does not apply to regulations under 9 VAC 5 Chapter 140: Part 
I--NOX Budget Trading Program, including those related to 
the part 75 rule.
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    On September 28, 2017, EPA simultaneously published a notice of 
proposed rulemaking (NPR) (82 FR 45241) and a direct final rule (DFR) 
(82 FR 45187) for Virginia approving, as a SIP revision, the removal of 
the regulations under 9 VAC 5 Chapter 140: Part II--NOX 
Annual Trading Program; Part III--NOX Ozone Season Trading 
Program; and Part IV--SO2 Annual Trading Program (Sections 
5-140-1010 through 5-140-3880), which implemented the CAIR annual 
NOX, ozone season NOX, and annual SO2 
trading programs in Virginia, from the Virginia SIP. EPA received 
adverse comments on the rulemaking and withdrew the DFR prior to the 
effective date of November 27, 2017. See 82 FR 55052 (November 20, 
2017). In the NPR, EPA had proposed to approve the SIP revision, which 
would remove from the Virginia SIP the regulations under 9 VAC 5 
Chapter 140 that implemented the CAIR annual NOX, ozone 
season NOX, and annual SO2 trading programs. In 
this final rulemaking, EPA is responding to the comments submitted on 
the proposed revision to the Virginia SIP and is approving, as a SIP 
revision, the removal of these regulations from the Virginia SIP.

II. Summary of SIP Revision and EPA Analysis

    VADEQ's January 5, 2017 SIP revision requests the removal of 
regulations from the Virginia SIP under 9 VAC 5 Chapter 140: Part II--
NOX Annual Trading Program, Part III--NOX Ozone 
Season Trading Program, and Part IV--SO2 Annual Trading 
Program (Sections 5-140-1010 through 5-140-3880), which implemented the 
state's CAIR annual NOX, ozone season NOX, and 
annual SO2 trading programs. EPA has not administered the 
trading programs established by these regulations since January 1, 
2015, when the CSAPR trading programs replaced the CAIR programs, and 
the state CAIR regulations have been repealed in their entirety from 
the Virginia Administrative Code. The amendments removing these 
regulations were adopted by the State Air Pollution Control Board on 
September 9, 2016, and were effective as of November 16, 2016.
    As noted previously, the CAIR annual NOX, ozone season 
NOX, and annual SO2 trading programs addressed 
interstate transport of emissions under the 1997 PM2.5 NAAQS 
and the 1997 ozone NAAQS. The D.C. Circuit remanded CAIR to EPA for 
replacement, and in response EPA promulgated CSAPR which, among other 
things, fully addresses Virginia's interstate transport obligation 
under the 1997 PM2.5 NAAQS. See 76 FR at 48210. EPA stopped 
administering the CAIR trading programs after 2014 and instead began 
implementing the CSAPR trading programs in 2015. EPA had also 
determined that CSAPR would fully address Virginia's interstate 
transport obligation under the 1997 ozone NAAQS, id., but the D.C. 
Circuit later remanded Virginia's CSAPR Phase 2 budget for ozone season 
NOX, finding that the CSAPR rulemaking record did not 
support EPA's determination of a transport obligation under the 1997 
ozone NAAQS for Virginia in CSAPR Phase 2, EME Homer City II, 795 F.3d 
at 129-30, and in response to the Court's decision EPA withdrew 
Virginia's remanded budget.\5\ Thus, none of Virginia's three CAIR 
state rules still plays any role in addressing the transport 
obligations that the state initially adopted the rules to address: The 
CAIR trading programs are no longer being administered; the state's 
transport obligation under the 1997 PM2.5 NAAQS is now being 
addressed by the CSAPR trading programs for annual NOX and 
SO2; and the state no longer has a transport obligation 
under the 1997 ozone NAAQS.
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    \5\ The replacement ozone season NOX budget 
established for Virginia in the CSAPR Update addresses (in part) the 
state's transport obligation under the 2008 ozone NAAQS rather than 
the 1997 ozone NAAQS.
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    Virginia's CAIR trading programs for annual NOX and 
SO2 were adopted only to address Virginia's transport 
obligation under the 1997 PM2.5 NAAQS, one of the two NAAQS 
underlying EPA's CAIR rules. In contrast, Virginia's CAIR trading 
program for ozone season NOX was adopted to address not only 
Virginia's transport obligation under the 1997 ozone NAAQS (the other 
NAAQS underlying EPA's CAIR rules), but also Virginia's ongoing 
obligations under the NOX SIP Call.\6\ Specifically, under 
the NOX SIP Call the Virginia SIP, first, must include 
enforceable control measures for large EGUs and large non-EGUs and, 
second, must require those sources to monitor and report ozone season 
NOX emissions in accordance with 40 CFR part 75. See 40 CFR 
51.121(f)(2) and (i)(4). Virginia's EGUs are currently subject to 
requirements under the federal CSAPR trading program for ozone season 
NOX that address the purpose of these NOX SIP 
Call requirements as to EGUs, but because Virginia's non-EGUs are not 
subject to that CSAPR trading program, the state must meet these 
requirements for non-EGUs through other SIP provisions.
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    \6\ The NOX SIP Call addresses states' transport 
obligations under the 1979 ozone NAAQS.
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    With respect to the NOX SIP Call requirement for the SIP 
to include part 75 monitoring requirements, Virginia's SIP still 
includes the state's NOX Budget Trading Program rules, and 
those rules continue to require non-EGUs to monitor and report ozone 
season NOX emissions under part 75 even though EPA is no 
longer administering the trading program provisions of the state's 
rules. Thus, removal of the state's CAIR rules for ozone season 
NOX emissions from Virginia's SIP will not eliminate the 
required SIP provisions for part 75 monitoring by non-EGUs under the 
NOX SIP Call because the SIP will still include the 
equivalent provisions in the state's NOX Budget Trading 
Program rules.
    With respect to the NOX SIP Call requirement for the SIP 
to include enforceable control measures for non-EGUs, Virginia formerly 
met the requirement by including these sources

[[Page 10794]]

in the state's CAIR trading program for ozone season NOX 
emissions. When EPA initially replaced the CAIR trading programs with 
the CSAPR trading programs in 2015, the CSAPR regulations did not 
provide an option for states to expand trading program applicability to 
include these non-EGUs. In the CSAPR Update, EPA restored the option to 
include these EGUs in the current CSAPR trading program for ozone 
season NOX starting in 2019, but Virginia has not elected 
this option. Accordingly, since January 1, 2015, when the CSAPR federal 
trading program became effective in Virginia and EPA stopped 
administering the CAIR trading programs, the Virginia SIP has not 
contained an effective regulation addressing the NOX SIP 
Call requirement for enforceable control measures for non-EGUs that 
formerly participated in the state's NOX Budget Trading 
Program. However, Virginia's request in its January 5, 2017 SIP seeking 
removal from its SIP of 9 VAC 5 Chapter 140: Part III--NOX 
Ozone Season Trading Program and EPA's action to approve the January 5, 
2017 submittal did not create this gap in coverage under the Virginia 
SIP. Rather, as described above, the gap predates the SIP submittal at 
issue in this action, and approval of the SIP submittal will not 
exacerbate or otherwise affect the gap. According to Virginia, the 
Commonwealth is in the process of drafting a regulation to address the 
Commonwealth's obligations under the NOX SIP Call (including 
its obligation to address these non-EGUs which formerly participated in 
the state's CAIR trading program for ozone season NOX 
emissions). In remedying its provisions to address the NOX 
SIP Call, Virginia must satisfy the requirements of 40 CFR 51.121(f)(2) 
for the SIP to include enforceable control measures for non-EGUs that 
are stationary, fossil fuel-fired boilers, combustion turbines, or 
combined cycle systems with a maximum design heat input greater than 
250 MMBtu/hr. EPA expects Virginia will submit such provisions to EPA 
to be included in Virginia's SIP, and EPA will review and act on any 
such SIP submittal from Virginia addressing the Commonwealth's 
NOX SIP Call obligations in a separate rulemaking.
    In summary, Virginia's CAIR rules at 9 VAC 5, Chapter 140: Part II-
NOX Annual Trading Program, Part III--NOX Ozone 
Season Trading Program, and Part IV--SO2 Annual Trading 
Program (sections 5-140-1010 through 5-140-3880) no longer play any 
role in addressing the transport obligations that the rules were 
adopted to address, and removal of the rules from the SIP will not 
introduce any new gaps with respect to the additional purposes that the 
rules served with respect to addressing the state's ongoing obligations 
under the NOX SIP Call. EPA therefore finds Virginia's 
January 5, 2017 SIP revision requesting removal of these CAIR rules 
from the SIP approvable in accordance with section 110 of the CAA. The 
public comments received on the NPR are discussed in Section III of 
this rulemaking action.

III. Public Comments and EPA's Response

    EPA received two public comments on our September 28, 2017 action 
to approve Virginia's January 5, 2017 SIP submittal that requests the 
removal of the regulations under 9 VAC 5 Chapter 140: Part II--
NOX Annual Trading Program; Part III--NOX Ozone 
Season Trading Program; and Part IV--SO2 Annual Trading 
Program (Sections 5-140-1010 through 5-140-3880), which implemented the 
state's CAIR annual NOX, ozone season NOX, and 
annual SO2 trading programs, from the Virginia SIP. The 
comment submitted on October 7, 2017 was not specific to this 
rulemaking action and will not be addressed here.
    Comment: The commenter stated that ``EPA needs to ensure that the 
NOX SIP call sources'' are addressed in the Virginia SIP. 
The commenter also requested that EPA not remove CAIR in Virginia, 
citing its public health benefits.
    EPA Response to Comment: As discussed in Section II, the CAIR 
trading programs are no longer being administered, and for that reason 
removing Virginia's CAIR rules from the state's SIP will have no 
consequences for any source's operations or emissions or for public 
health. EPA also notes that removal of the state's CAIR rules from the 
state's SIP does not eliminate requirements for the state's EGUs and 
non-EGUs to monitor and report their ozone season NOX 
emissions in accordance with 40 CFR part 75 as required under the 
NOX SIP Call. The EGUs continue to be subject to part 75 
requirements under the current CSAPR trading program rules, and the 
non-EGUs continue to be subject to part 75 requirements under the 
state's NOX Budget Trading Program rules, which are still 
included in the state's SIP.
    EPA agrees that under the NOX SIP Call, the Virginia SIP 
must include enforceable control measures for ozone season 
NOX emissions from non-EGUs, such as stationary, fossil 
fuel-fired boilers, combustion turbines, or combined cycle systems with 
a maximum design heat input greater than 250 MMBtu/hr, that formerly 
participated in the state's NOX SIP Call trading program and 
CAIR trading program for ozone season NOX emission. This 
requirement for the SIP to include enforceable control measures was 
formerly met by the SIP provisions requiring these sources to 
participate in the state's NOX Budget Trading Program and 
then the state's CAIR trading program for ozone season NOX 
emissions. However, since 2015, when EPA began implementing the CSAPR 
trading programs and stopped administering the CAIR trading programs in 
response to the D.C. Circuit's remand of CAIR, Virginia's SIP has not 
included enforceable control measures for NOX emissions from 
these non-EGUs. This gap in SIP coverage was caused by the 
discontinuation of the CAIR trading programs and predates the SIP 
submittal at issue in this action. Removing the state's CAIR rules from 
the SIP at this time will not exacerbate or otherwise affect this pre-
existing lack of enforceable control measures in the SIP. As stated 
above in Section II, according to Virginia, the Commonwealth is in the 
process of drafting a regulation to address the Commonwealth's 
obligation under the NOX SIP Call with respect to 
NOX emissions from these non-EGUs, which includes the 
requirement for enforceable control measures. EPA expects Virginia will 
submit such provisions to EPA to be included in Virginia's SIP, and EPA 
will review and act on any such SIP submittal from Virginia addressing 
the Commonwealth's NOX SIP Call obligations in a separate 
rulemaking.

IV. Final Action

    EPA is approving the Virginia SIP revision submitted on January 5, 
2017 that sought removal from the Virginia SIP of regulations under 9 
VAC 5 Chapter 140: Part II--NOX Annual Trading Program; Part 
III--NOX Ozone Season Trading Program; and Part IV--
SO2 Annual Trading Program (Sections 5-140-1010 through 5-
140-3880), which implemented the state's CAIR annual NOX, 
ozone season NOX, and annual SO2 trading 
programs. Removal of these regulations from the Virginia SIP is in 
accordance with section 110 of the CAA. This rule, which responds to 
the adverse comments received, finalizes our proposed approval of 
Virginia's January 5, 2017 SIP submittal.

V. General Information Pertaining to SIP Submittals From the 
Commonwealth of Virginia

    In 1995, Virginia adopted legislation that provides, subject to 
certain

[[Page 10795]]

conditions, for an environmental assessment (audit) ``privilege'' for 
voluntary compliance evaluations performed by a regulated entity. The 
legislation further addresses the relative burden of proof for parties 
either asserting the privilege or seeking disclosure of documents for 
which the privilege is claimed. Virginia's legislation also provides, 
subject to certain conditions, for a penalty waiver for violations of 
environmental laws when a regulated entity discovers such violations 
pursuant to a voluntary compliance evaluation and voluntarily discloses 
such violations to the Commonwealth and takes prompt and appropriate 
measures to remedy the violations. Virginia's Voluntary Environmental 
Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege 
that protects from disclosure documents and information about the 
content of those documents that are the product of a voluntary 
environmental assessment. The Privilege Law does not extend to 
documents or information that: (1) Are generated or developed before 
the commencement of a voluntary environmental assessment; (2) are 
prepared independently of the assessment process; (3) demonstrate a 
clear, imminent and substantial danger to the public health or 
environment; or (4) are required by law.
    On January 12, 1998, the Commonwealth of Virginia Office of the 
Attorney General provided a legal opinion that states that the 
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege 
to documents and information ``required by law,'' including documents 
and information ``required by federal law to maintain program 
delegation, authorization or approval,'' since Virginia must ``enforce 
federally authorized environmental programs in a manner that is no less 
stringent than their federal counterparts. . . .'' The opinion 
concludes that ``[r]egarding Sec.  10.1-1198, therefore, documents or 
other information needed for civil or criminal enforcement under one of 
these programs could not be privileged because such documents and 
information are essential to pursuing enforcement in a manner required 
by federal law to maintain program delegation, authorization or 
approval.''
    Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that 
``[t]o the extent consistent with requirements imposed by federal 
law,'' any person making a voluntary disclosure of information to a 
state agency regarding a violation of an environmental statute, 
regulation, permit, or administrative order is granted immunity from 
administrative or civil penalty. The Attorney General's January 12, 
1998 opinion states that the quoted language renders this statute 
inapplicable to enforcement of any federally authorized programs, since 
``no immunity could be afforded from administrative, civil, or criminal 
penalties because granting such immunity would not be consistent with 
federal law, which is one of the criteria for immunity.''
    Therefore, EPA has determined that Virginia's Privilege and 
Immunity statutes will not preclude the Commonwealth from enforcing its 
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

[[Page 10796]]

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 removing from the Virginia SIP regulations under 
Sections 5-140-1010 through 5-140-3880 of 9 VAC 5 Chapter 140 that 
implemented the CAIR annual NOX, ozone season 
NOX, and annual SO2 trading programs may not be 
challenged later in proceedings to enforce its requirements. (See CAA 
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, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
oxides, Volatile organic compounds.

    Dated: February 23, 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


Sec.  52.2420   [Amended]

0
2. In Sec.  52.2420, the table in paragraph (c) is amended by:
0
a. Removing the table heading ``Part II--NOX Annual Trading 
Program''; the table subheading ``Article 1 CAIR NOX Annual 
Trading Program General Provisions'' and the entries ``5-140-1010'' 
through ``5-140-1080''; the table subheading ``Article 2 CAIR-
designated Representative for CAIR NOX Sources'' and the 
entries ``5-140-1100'' through ``5-140-1150''; the table subheading 
``Article 3 Permits'' and the entries ``5-140-1200'' through ``5-140-
1240''; the table subheading ``Article 5 CAIR NOX Allowance 
Allocations'' and the entries ``5-140-1400'' through ``5-140-1430''; 
the table subheading ``Article 6 CAIR NOX Allowance Tracking 
System'' and the entries ``5-140-1510'' through ``5-140-1570''; the 
table subheading ``Article 7 CAIR NOX Allowance Transfers'' 
and the entries ``5-140-1600'' through ``5-140-1620''; the table 
subheading ``Article 8 Monitoring and Reporting'' and the entries ``5-
140-1700'' through ``5-140-1750''; the table subheading ``Article 9 
CAIR NOX Opt-in Units'' and the entries ``5-140-1800'' 
through ``5-140-1880''.
0
b. Removing the table heading ``Part III NOX Ozone Season 
Trading Program''; the table subheading ``Article 1 CAIR NOX 
Ozone Season Trading Program General Provisions'' and the entries ``5-
140-2010'' through ``5-140-2080''; the table subheading ``Article 2 
CAIR-Designated Representative for CAIR NOX Ozone Season 
Sources'' and the entries ``5-140-2100'' through ``5-140-2150''; the 
table subheading ``Article 3 Permits'' and the entries ``5-140-2200'' 
through ``5-140-2240''; the table subheading ``Article 5 CAIR 
NOX Ozone Season Allowance Allocations'' and the entries 
``5-140-2400'' through ``5-140-2430''; the table subheading ``Article 6 
CAIR NOX Ozone Season Allowance Tracking System'' and the 
entries ``5-140-2510'' through ``5-140-2570''; the table subheading 
``Article 7 CAIR NOX Ozone Season Allowance Transfers'' and 
the entries ``5-140-2600'' through ``5-140-2620''; the table subheading 
``Article 8 Monitoring and Reporting'' and the entries ``5-140-2700'' 
through ``5-140-2750''; the table subheading ``Article 9 CAIR 
NOX Ozone Season Opt-in Units'' and the entries ``5-140-
2800'' through ``5-140-2880''.
0
c. Removing the table heading ``Part IV--SO2 Annual Trading 
Program''; the table subheading ``Article 1 CAIR SO2 Trading 
Program General Provisions'' and the entries ``5-140-3010'' through 
``5-140-3080''; the table subheading ``Article 2 CAIR-designated 
Representative for CAIR SO2 Sources'' and the entries ``5-
140-3100'' through ``5-140-3150''; the table subheading ``Article 3 
Permits'' and the entries ``5-140-3200'' through ``5-140-3240''; the 
table subheading ``Article 5 CAIR SO2 Allowance 
Allocations'' and the entries ``5-140-3400'' through ``5-140-3420''; 
the table subheading ``Article 6 CAIR SO2 Allowance Tracking 
System'' and the entries ``5-140-3510'' through ``5-140-3570''; the 
table subheading ``Article 7 CAIR SO2 Allowance Transfers'' 
and the entries ``5-140-3600'' through ``5-140-3620''; the table 
subheading ``Article 8 Monitoring and Reporting'' and the entries ``5-
140-3700'' through ``5-140-3750''; the table subheading ``Article 9 
CAIR SO2 Opt-in Units'' and the entries ``5-140-3800'' 
through ``5-140-3880''.

[FR Doc. 2018-04935 Filed 3-12-18; 8:45 am]
 BILLING CODE 6560-50-P
Federal Register / Vol. 83, No. 49 / Tuesday, March 13, 2018 / Rules and Regulations 10791

B. Submission to Congress and the Court of Appeals for the appropriate requirements, Volatile organic
Comptroller General circuit by May 14, 2018. Filing a compounds.
The Congressional Review Act, 5 petition for reconsideration by the Dated: February 26, 2018.
U.S.C. 801 et seq., as added by the Small Administrator of this final rule does not Cosmo Servidio,
Business Regulatory Enforcement affect the finality of this action for the
Regional Administrator, Region III.
Fairness Act of 1996, generally provides purposes of judicial review nor does it
extend the time within which a petition 40 CFR part 52 is amended as follows:
that before a rule may take effect, the
agency promulgating the rule must for judicial review may be filed, and PART 52—APPROVAL AND
submit a rule report, which includes a shall not postpone the effectiveness of PROMULGATION OF
copy of the rule, to each House of the such rule or action. This action IMPLEMENTATION PLANS
Congress and to the Comptroller General updating the definition of VOC in the
of the United States. EPA will submit a Virginia SIP by removing the ■ 1. The authority citation for part 52
report containing this action and other recordkeeping, emissions reporting, continues to read as follows:
required information to the U.S. Senate, photochemical dispersion modeling,
Authority: 42 U.S.C. 7401 et seq.
the U.S. House of Representatives, and and inventory requirements related to
the Comptroller General of the United the use of TBAC as a VOC and adding Subpart VV—Virginia
States prior to publication of the rule in HFE-347pcf2 to the list of compounds
the Federal Register. A major rule excluded from the regulatory definition ■ 2. In § 52.2420, the table in paragraph
cannot take effect until 60 days after it of VOC may not be challenged later in (c) is amended by adding two entries for
is published in the Federal Register. proceedings to enforce its requirements. ‘‘Section 5–10–20’’ after the entry for
This action is not a ‘‘major rule’’ as (See section 307(b)(2).) ‘‘Section 5–10–20’’ (with the State
defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 52 effective date of 7/30/15) to read as
follows:
C. Petitions for Judicial Review Environmental protection, Air
Under section 307(b)(1) of the CAA, pollution control, Incorporation by § 52.2420 Identification of plan.
petitions for judicial review of this reference, Intergovernmental relations, * * * * *
action must be filed in the United States Ozone, Reporting and recordkeeping (c) * * *

EPA–APPROVED VIRGINIA REGULATIONS AND STATUTES
State effective Explanation
State citation Title/subject EPA approval date
date [former SIP citation]

9 VAC 5, Chapter 10 General Definitions [Part I]

* * * * * * *
5–10–20 .............. Terms Defined ................ 12/15/16 3/13/18, [Insert Federal Definition of ‘‘volatile organic compound’’ is revised
Register citation]. by removing the recordkeeping, emissions re-
porting, photochemical dispersion modeling, and
inventory requirements related to the use of t-
butyl acetate (also known as tertiary butyl ace-
tate or TBAC) as a VOC.
5–10–20 .............. Terms Defined ................ 5/19/17 3/13/18, [Insert Federal Definition of ‘‘volatile organic compound’’ is revised
Register citation]. 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.

* * * * * * *

* * * * * ACTION: Final rule. established federal trading programs for
[FR Doc. 2018–04937 Filed 3–12–18; 8:45 am] sources in multiple states, including
BILLING CODE 6560–50–P SUMMARY: The Environmental Protection Virginia, that replace the CAIR state and
Agency (EPA) is approving a state federal trading programs. The submitted
implementation plan (SIP) revision SIP revision requests removal of state
ENVIRONMENTAL PROTECTION submitted by the Commonwealth of regulations that implemented the CAIR
AGENCY Virginia (Virginia). The revision annual nitrogen oxides (NOX), ozone
requests EPA remove from the Virginia season NOX, and annual sulfur dioxide
40 CFR Part 52 (SO2) trading programs from the
SIP regulations from the Virginia
[EPA–R03–OAR–2017–0215; FRL–9975–32– Administrative Code that established Virginia SIP (as CSAPR has replaced
Region 3] trading programs under the Clean Air CAIR). EPA is approving the SIP
Interstate Rule (CAIR). The EPA- revision in accordance with the
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Approval and Promulgation of Air requirements of the Clean Air Act
administered trading programs under
Quality Implementation Plans; Virginia; (CAA).
Removal of Clean Air Interstate Rule CAIR were discontinued on December
31, 2014, upon the implementation of DATES: This final rule is effective on
(CAIR) Trading Programs
the Cross-State Air Pollution Rule April 12, 2018.
AGENCY: Environmental Protection (CSAPR), which was promulgated by ADDRESSES: EPA has established a
Agency (EPA). EPA to replace CAIR. CSAPR docket for this action under Docket ID

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Number EPA–R03–OAR–2017–0215. All Call.2 Virginia submitted, and EPA and on December 30, 2011, the D.C.
documents in the docket are listed on approved, a CAIR SIP revision based on Circuit stayed CSAPR prior to its
the http://www.regulations.gov website. the model state rules establishing CAIR implementation and ordered EPA to
Although listed in the index, some state trading programs for annual SO2, continue administering CAIR on an
information is not publicly available, annual NOX, and ozone season NOX interim basis. On August 21, 2012, the
e.g., confidential business information emissions, with certain non-EGUs D.C. Circuit issued its ruling, vacating
(CBI) or other information whose included in the state’s CAIR ozone and remanding CSAPR to EPA and
disclosure is restricted by statute. season NOX trading program. See 72 FR ordering continued implementation of
Certain other material, such as 73602 (December 28, 2007). Because CAIR. EME Homer City Generation, L.P.
copyrighted material, is not placed on Virginia’s NOX ozone season trading v. EPA, 696 F.3d 7, 38 (D.C. Cir. 2012).
the internet and will be publicly program under CAIR included non- The D.C. Circuit’s vacatur of CSAPR
available only in hard copy form. EGUs that previously participated in the was reversed by the United States
Publicly available docket materials are NOX budget trading program under the Supreme Court on April 29, 2014, and
available through http:// NOX SIP Call, this CAIR program the case was remanded to the D.C.
www.regulations.gov, or please contact satisfied Virginia’s obligations under the Circuit to resolve remaining issues in
the person identified in the FOR FURTHER NOX SIP Call as to both EGUs and non- accordance with the Supreme Court’s
INFORMATION CONTACT section for EGUs. However, even though the NOX ruling. EPA v. EME Homer City
additional availability information. SIP Call requirements were being met by Generation, L.P., 134 S. Ct. 1584 (2014).
FOR FURTHER INFORMATION CONTACT: Sara the CAIR program, Virginia’s state NOX On remand, the D.C. Circuit affirmed
Calcinore, (215) 814–2043, or by email Budget Trading Program rule also CSAPR in most respects but remanded
at calcinore.sara@epa.gov. remains part of the state’s approved SIP. certain state emissions budgets,
SUPPLEMENTARY INFORMATION:
See 76 FR 68638 (November 7, 2011). including Virginia’s Phase 2 budget for
The United States Court of Appeals ozone season NOX emissions. EME
I. Background for the District of Columbia Circuit (D.C. Homer City Generation, L.P. v. EPA
In 2005, EPA promulgated CAIR (70 Circuit) initially vacated CAIR in 2008, (EME Homer City II), 795 F.3d 118, 138
FR 25162, May 12, 2005) to address but ultimately remanded the rule to EPA (D.C. Cir. 2015).
transported emissions that significantly without vacatur to preserve the Throughout the initial round of D.C.
contributed to downwind states’ environmental benefits provided by Circuit proceedings and the ensuing
nonattainment and interfered with CAIR. North Carolina v. EPA, 531 F.3d Supreme Court proceedings, the stay on
maintenance of the 1997 ozone and fine 896, modified, 550 F.3d 1176 (2008). CSAPR remained in place, and EPA
particulate matter (PM2.5) national The ruling allowed CAIR to remain in continued to implement CAIR.
ambient air quality standards (NAAQS). effect temporarily until a replacement Following the April 2014 Supreme
CAIR required 28 states, including rule consistent with the court’s opinion Court decision, EPA filed a motion
Virginia, to revise their SIPs to reduce was developed. While EPA worked on asking the D.C. Circuit to lift the stay in
developing a replacement rule, the CAIR order to allow CSAPR to replace CAIR
emissions of NOX and SO2, precursors
program continued as planned with the in an equitable and orderly manner
to the formation of ambient ozone and
NOX annual and ozone season programs while further D.C. Circuit proceedings
PM2.5. Under CAIR, EPA provided
beginning in 2009 and the SO2 annual were held to resolve remaining claims
model state rules for separate cap-and-
program beginning in 2010. from petitioners. Additionally, EPA’s
trade programs for annual NOX, ozone On August 8, 2011 (76 FR 48208), motion requested delay, by three years,
season NOX, and annual SO2. The acting on the D.C. Circuit’s remand, EPA of all CSAPR compliance deadlines that
annual NOX and annual SO2 trading promulgated CSAPR to replace CAIR in had not passed as of the approval date
programs were designed to address order to address the interstate transport of the stay. On October 23, 2014, the
transported PM2.5 pollution, while the of emissions contributing to D.C. Circuit granted EPA’s request, and
ozone season NOX trading program was nonattainment and interfering with on December 3, 2014 (79 FR 71663), in
designed to address transported ozone maintenance of the two air quality an interim final rule, EPA set the
pollution. EPA also promulgated CAIR standards covered by CAIR as well as updated effective date of CSAPR as
federal implementation plans (FIPs) the 2006 PM2.5 NAAQS. CSAPR January 1, 2015, and delayed the
with CAIR federal trading programs that required EGUs in affected states, implementation of CSAPR Phase I to
would address each state’s CAIR including Virginia, to participate in 2015 and CSAPR Phase 2 to 2017. In
requirements in the event that a CAIR federal trading programs to reduce accordance with the interim final rule,
SIP for the state was not submitted or annual SO2, annual NOX, and/or ozone EPA stopped administering the CAIR
approved (71 FR 25328, April 28, 2006). season NOX emissions. The rule also state and federal trading programs with
Generally, both the model state rules contained provisions that would sunset respect to emissions occurring after
and the federal trading program rules CAIR-related obligations on a schedule December 31, 2014, and EPA began
applied only to electric generating units coordinated with the implementation of implementing CSAPR on January 1,
(EGUs), but in the case of the model the CSAPR compliance requirements. 2015.3
state rule and federal trading program CSAPR was intended to become In October 2016, EPA promulgated
for ozone season NOX emissions, each effective January 1, 2012; however, the the CSAPR Update (81 FR 74504,
state had the option to submit a CAIR timing of CSAPR’s implementation was October 26, 2016) to address interstate
SIP revision that expanded applicability impacted by a number of court actions. transport of ozone pollution with
to include certain non-EGUs 1 that Numerous parties filed petitions for respect to the 2008 ozone NAAQS, and
formerly participated in the NOX Budget review of CSAPR in the D.C. Circuit, issued FIPs that established or updated
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Trading Program under the NOX SIP ozone season NOX budgets for 22 states,
2 In October 1998, EPA finalized the ‘‘Finding of
1 These non-EGUs are generally defined in the Significant Contribution and Rulemaking for 3 EPA solicited comment on the interim final rule
NOX SIP Call as stationary, fossil fuel-fired boilers, Certain States in the Ozone Transport Assessment and subsequently issued a final rule affirming the
combustion turbines, or combined cycle systems Group Region for Purposes of Reducing Regional amended compliance schedule after consideration
with a maximum design heat input greater than 250 Transport of Ozone’’—commonly called the NOX of comments received. 81 FR 13275 (March 14,
million British thermal units per hour (MMBtu/hr). SIP Call. See 63 FR 57356 (October 27, 1998). 2016).

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including Virginia. Starting in January responding to the comments submitted transport obligations that the state
2017, the CSAPR Update budgets were on the proposed revision to the Virginia initially adopted the rules to address:
implemented via modifications to the SIP and is approving, as a SIP revision, The CAIR trading programs are no
CSAPR NOX ozone season allowance the removal of these regulations from longer being administered; the state’s
trading program that was established the Virginia SIP. transport obligation under the 1997
under the original CSAPR. PM2.5 NAAQS is now being addressed
As noted above, starting in January II. Summary of SIP Revision and EPA
by the CSAPR trading programs for
2015, the CSAPR federal trading Analysis
annual NOX and SO2; and the state no
programs for annual NOX, ozone season VADEQ’s January 5, 2017 SIP revision longer has a transport obligation under
NOX, and annual SO2 were applicable in requests the removal of regulations from the 1997 ozone NAAQS.
Virginia. Thus, since January 1, 2015, the Virginia SIP under 9 VAC 5 Chapter Virginia’s CAIR trading programs for
EPA has not administered the CAIR 140: Part II—NOX Annual Trading annual NOX and SO2 were adopted only
state trading programs for annual NOX, Program, Part III—NOX Ozone Season to address Virginia’s transport
ozone season NOX, or annual SO2 Trading Program, and Part IV—SO2 obligation under the 1997 PM2.5
emissions established by the Virginia Annual Trading Program (Sections 5– NAAQS, one of the two NAAQS
regulations. 140–1010 through 5–140–3880), which underlying EPA’s CAIR rules. In
On January 5, 2017, the implemented the state’s CAIR annual contrast, Virginia’s CAIR trading
Commonwealth of Virginia, through the NOX, ozone season NOX, and annual program for ozone season NOX was
Virginia Department of Environmental SO2 trading programs. EPA has not adopted to address not only Virginia’s
Quality (VADEQ), formally submitted a administered the trading programs transport obligation under the 1997
SIP revision (Revision D16) that established by these regulations since ozone NAAQS (the other NAAQS
requests removal from its SIP of Virginia January 1, 2015, when the CSAPR underlying EPA’s CAIR rules), but also
Administrative Code regulations trading programs replaced the CAIR Virginia’s ongoing obligations under the
including 9 VAC 5 Chapter 140: Part programs, and the state CAIR NOX SIP Call.6 Specifically, under the
II—NOX Annual Trading Program; Part regulations have been repealed in their NOX SIP Call the Virginia SIP, first,
III—NOX Ozone Season Trading entirety from the Virginia must include enforceable control
Program; and Part IV—SO2 Annual Administrative Code. The amendments measures for large EGUs and large non-
Trading Program (Sections 5–140–1010 removing these regulations were EGUs and, second, must require those
through 5–140–3880), which adopted by the State Air Pollution sources to monitor and report ozone
implemented the CAIR annual NOX, Control Board on September 9, 2016, season NOX emissions in accordance
ozone season NOX, and annual SO2 and were effective as of November 16, with 40 CFR part 75. See 40 CFR
trading programs in Virginia.4 2016. 51.121(f)(2) and (i)(4). Virginia’s EGUs
On September 28, 2017, EPA As noted previously, the CAIR annual are currently subject to requirements
simultaneously published a notice of NOX, ozone season NOX, and annual under the federal CSAPR trading
proposed rulemaking (NPR) (82 FR SO2 trading programs addressed program for ozone season NOX that
45241) and a direct final rule (DFR) (82 interstate transport of emissions under address the purpose of these NOX SIP
FR 45187) for Virginia approving, as a the 1997 PM2.5 NAAQS and the 1997 Call requirements as to EGUs, but
SIP revision, the removal of the ozone NAAQS. The D.C. Circuit because Virginia’s non-EGUs are not
regulations under 9 VAC 5 Chapter 140: remanded CAIR to EPA for replacement, subject to that CSAPR trading program,
Part II—NOX Annual Trading Program; and in response EPA promulgated the state must meet these requirements
Part III—NOX Ozone Season Trading CSAPR which, among other things, fully for non-EGUs through other SIP
Program; and Part IV—SO2 Annual addresses Virginia’s interstate transport provisions.
Trading Program (Sections 5–140–1010 obligation under the 1997 PM2.5 With respect to the NOX SIP Call
through 5–140–3880), which NAAQS. See 76 FR at 48210. EPA requirement for the SIP to include part
implemented the CAIR annual NOX, stopped administering the CAIR trading 75 monitoring requirements, Virginia’s
ozone season NOX, and annual SO2 programs after 2014 and instead began SIP still includes the state’s NOX Budget
trading programs in Virginia, from the implementing the CSAPR trading Trading Program rules, and those rules
Virginia SIP. EPA received adverse programs in 2015. EPA had also continue to require non-EGUs to
comments on the rulemaking and determined that CSAPR would fully monitor and report ozone season NOX
withdrew the DFR prior to the effective address Virginia’s interstate transport emissions under part 75 even though
date of November 27, 2017. See 82 FR obligation under the 1997 ozone EPA is no longer administering the
55052 (November 20, 2017). In the NPR, NAAQS, id., but the D.C. Circuit later trading program provisions of the state’s
EPA had proposed to approve the SIP remanded Virginia’s CSAPR Phase 2 rules. Thus, removal of the state’s CAIR
revision, which would remove from the budget for ozone season NOX, finding rules for ozone season NOX emissions
Virginia SIP the regulations under 9 that the CSAPR rulemaking record did from Virginia’s SIP will not eliminate
VAC 5 Chapter 140 that implemented not support EPA’s determination of a the required SIP provisions for part 75
the CAIR annual NOX, ozone season transport obligation under the 1997 monitoring by non-EGUs under the NOX
NOX, and annual SO2 trading programs. ozone NAAQS for Virginia in CSAPR SIP Call because the SIP will still
In this final rulemaking, EPA is Phase 2, EME Homer City II, 795 F.3d include the equivalent provisions in the
at 129–30, and in response to the state’s NOX Budget Trading Program
4 EPA notes that Virginia’s January 5, 2017 SIP Court’s decision EPA withdrew rules.
revision does not request removal of the regulations Virginia’s remanded budget.5 Thus,
under 9 VAC 5 Chapter 140: Part I—NOX Budget With respect to the NOX SIP Call
none of Virginia’s three CAIR state rules requirement for the SIP to include
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Trading Program, which include regulations
addressing the continuous emission monitoring still plays any role in addressing the enforceable control measures for non-
requirements of 40 CFR part 75 for non-EGUs EGUs, Virginia formerly met the
covered by the NOX SIP Call (Part 75 rule). 5 The replacement ozone season NO budget
Therefore, this rulemaking action does not apply to
X
established for Virginia in the CSAPR Update
requirement by including these sources
regulations under 9 VAC 5 Chapter 140: Part I— addresses (in part) the state’s transport obligation
NOX Budget Trading Program, including those under the 2008 ozone NAAQS rather than the 1997 6 The NO SIP Call addresses states’ transport
X
related to the part 75 rule. ozone NAAQS. obligations under the 1979 ozone NAAQS.

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conditions, for an environmental administrative or civil penalty. The • Does not contain any unfunded
assessment (audit) ‘‘privilege’’ for Attorney General’s January 12, 1998 mandate or significantly or uniquely
voluntary compliance evaluations opinion states that the quoted language affect small governments, as described
performed by a regulated entity. The renders this statute inapplicable to in the Unfunded Mandates Reform Act
legislation further addresses the relative enforcement of any federally authorized of 1995 (Pub. L. 104–4);
burden of proof for parties either programs, since ‘‘no immunity could be • Does not have federalism
asserting the privilege or seeking afforded from administrative, civil, or implications as specified in Executive
disclosure of documents for which the criminal penalties because granting Order 13132 (64 FR 43255, August 10,
privilege is claimed. Virginia’s such immunity would not be consistent 1999);
legislation also provides, subject to with federal law, which is one of the • Is not an economically significant
certain conditions, for a penalty waiver criteria for immunity.’’ regulatory action based on health or
for violations of environmental laws Therefore, EPA has determined that safety risks subject to Executive Order
when a regulated entity discovers such Virginia’s Privilege and Immunity 13045 (62 FR 19885, April 23, 1997);
violations pursuant to a voluntary statutes will not preclude the • Is not a significant regulatory action
compliance evaluation and voluntarily Commonwealth from enforcing its subject to Executive Order 13211 (66 FR
discloses such violations to the program consistent with the federal 28355, May 22, 2001);
Commonwealth and takes prompt and requirements. In any event, because • Is not subject to requirements of
appropriate measures to remedy the EPA has also determined that a state section 12(d) of the National
violations. Virginia’s Voluntary audit privilege and immunity law can Technology Transfer and Advancement
Environmental Assessment Privilege affect only state enforcement and cannot Act of 1995 (15 U.S.C. 272 note) because
Law, Va. Code Sec. 10.1–1198, provides have any impact on federal enforcement application of those requirements would
a privilege that protects from disclosure authorities, EPA may at any time invoke be inconsistent with the CAA; and
documents and information about the its authority under the CAA, including, • Does not provide EPA with the
content of those documents that are the for example, sections 113, 167, 205, 211 discretionary authority to address, as
product of a voluntary environmental or 213, to enforce the requirements or appropriate, disproportionate human
assessment. The Privilege Law does not prohibitions of the state plan, health or environmental effects, using
extend to documents or information independently of any state enforcement practicable and legally permissible
that: (1) Are generated or developed effort. In addition, citizen enforcement methods, under Executive Order 12898
before the commencement of a under section 304 of the CAA is (59 FR 7629, February 16, 1994).
voluntary environmental assessment; (2) likewise unaffected by this, or any, state The SIP is not approved to apply on
are prepared independently of the audit privilege or immunity law. any Indian reservation land as defined
assessment process; (3) demonstrate a in 18 U.S.C. 1151 or in any other area
clear, imminent and substantial danger VI. Statutory and Executive Order where EPA or an Indian tribe has
to the public health or environment; or Reviews demonstrated that a tribe has
(4) are required by law. A. General Requirements jurisdiction. In those areas of Indian
On January 12, 1998, the country, the rule does not have tribal
Commonwealth of Virginia Office of the Under the CAA, the Administrator is implications and will not impose
Attorney General provided a legal required to approve a SIP submission substantial direct costs on tribal
opinion that states that the Privilege that complies with the provisions of the governments or preempt tribal law as
law, Va. Code Sec. 10.1–1198, precludes CAA and applicable federal regulations. specified by Executive Order 13175 (65
granting a privilege to documents and 42 U.S.C. 7410(k); 40 CFR 52.02(a). FR 67249, November 9, 2000).
information ‘‘required by law,’’ Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices, B. Submission to Congress and the
including documents and information
provided that they meet the criteria of Comptroller General
‘‘required by federal law to maintain
program delegation, authorization or the CAA. Accordingly, this action The Congressional Review Act, 5
approval,’’ since Virginia must ‘‘enforce merely approves state law as meeting U.S.C. 801 et seq., as added by the Small
federally authorized environmental federal requirements and does not Business Regulatory Enforcement
programs in a manner that is no less impose additional requirements beyond Fairness Act of 1996, generally provides
stringent than their federal those imposed by state law. For that that before a rule may take effect, the
counterparts. . . .’’ The opinion reason, this action: agency promulgating the rule must
concludes that ‘‘[r]egarding § 10.1–1198, • Is not a ‘‘significant regulatory submit a rule report, which includes a
therefore, documents or other action’’ subject to review by the Office copy of the rule, to each House of the
information needed for civil or criminal of Management and Budget under Congress and to the Comptroller General
enforcement under one of these Executive Orders 12866 (58 FR 51735, of the United States. EPA will submit a
programs could not be privileged October 4, 1993) and 13563 (76 FR 3821, report containing this action and other
because such documents and January 21, 2011); required information to the U.S. Senate,
information are essential to pursuing • Is not an Executive Order 13771 (82 the U.S. House of Representatives, and
enforcement in a manner required by FR 9339, February 2, 2017) regulatory the Comptroller General of the United
federal law to maintain program action because SIP approvals are States prior to publication of the rule in
delegation, authorization or approval.’’ exempted under Executive Order 12866. the Federal Register. A major rule
Virginia’s Immunity law, Va. Code • Does not impose an information cannot take effect until 60 days after it
Sec. 10.1–1199, provides that ‘‘[t]o the collection burden under the provisions is published in the Federal Register.
extent consistent with requirements of the Paperwork Reduction Act (44 This action is not a ‘‘major rule’’ as
amozie on DSK30RV082PROD with RULES

imposed by federal law,’’ any person U.S.C. 3501 et seq.); defined by 5 U.S.C. 804(2).
making a voluntary disclosure of • Is certified as not having a
information to a state agency regarding significant economic impact on a C. Petitions for Judicial Review
a violation of an environmental statute, substantial number of small entities Under section 307(b)(1) of the CAA,
regulation, permit, or administrative under the Regulatory Flexibility Act (5 petitions for judicial review of this
order is granted immunity from U.S.C. 601 et seq.); action must be filed in the United States

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Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Final rule.
Dates		This final rule is effective on April 12, 2018.
Contact		Sara Calcinore, (215) 814-2043, or by email at [email protected]
FR Citation		83 FR 10791
CFR Associated		Environmental Protection; Air Pollution Control; Incorporation by Reference; Intergovernmental Relations; Nitrogen Dioxide; Ozone; Particulate Matter; Reporting and Recordkeeping Requirements; Sulfur Oxides and Volatile Organic Compounds