83 FR 7610 - Approval and Promulgation of Air Quality Implementation Plans; Virginia; Revisions To Implement the Revocation of the 1997 Ozone NAAQS
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 83, Issue 36 (February 22, 2018)
Federal Register Volume 83, Issue 36 (February 22, 2018)
| Page Range | 7610-7614 | |
| FR Document | 2018-03524 |
[Federal Register Volume 83, Number 36 (Thursday, February 22, 2018)] [Rules and Regulations] [Pages 7610-7614] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-03524] ======================================================================= ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2017-0382; FRL-9974-66--Region 3] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Revisions To Implement the Revocation of the 1997 Ozone NAAQS AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is taking final action to approve revisions to the Commonwealth of Virginia (Virginia) state implementation plan (SIP). The revisions are related to the implementation of the 2008 ozone national ambient air quality standards (NAAQS or standards) and the revocation of the 1997 ozone NAAQS. EPA is approving these revisions updating the Virginia SIP to reflect the revocation of the 1997 ozone NAAQS in accordance with the requirements of the Clean Air Act (CAA). DATES: This final rule is effective on March 26, 2018. ADDRESSES: EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2017-0382. All documents in the docket are listed on the 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 calcinore.sara@epa.gov. SUPPLEMENTARY INFORMATION: I. Background Under the CAA, EPA establishes NAAQS for criteria pollutants \1\ in order to protect human health and the environment. In response to scientific evidence linking ozone exposure to adverse health effects, EPA promulgated the first ozone NAAQS, the 0.12 part per million (ppm) 1-hour ozone NAAQS, in 1979. See 44 FR 8202 (February 8, 1979). The CAA requires EPA to review and reevaluate the NAAQS every 5 years in order to consider updated information regarding the effects of the criteria pollutants on human health and the environment. On July 18, 1997, EPA promulgated a revised ozone NAAQS, referred to as the 1997 ozone NAAQS, of 0.08 ppm averaged over eight hours. 62 FR 38855. This 8-hour ozone NAAQS was determined to be more protective of public health than the previous 1979 1-hour ozone NAAQS. In 2008, EPA strengthened the 8-hour ozone NAAQS from 0.08 to 0.075 ppm. The 0.075 ppm standard is referred to as the 2008 ozone NAAQS and is more stringent than the previous 1997 ozone NAAQS. See 73 FR 16436 (March 27, 2008).\2\ --------------------------------------------------------------------------- \1\ The ``criteria pollutants'' include ozone (O3 ), particulate matter (PM), sulfur dioxide (SO2 ), nitrogen dioxide (NO2 ), carbon monoxide (CO), and lead (Pb). \2\ On October 1, 2015, EPA strengthened the ground-level ozone NAAQS to 0.070 ppm. See 80 FR 65292 (October 26, 2015). This rulemaking addresses the 2008 ozone NAAQS and does not address the 2015 ozone NAAQS. --------------------------------------------------------------------------- On March 6, 2015, EPA issued a final rule addressing a range of nonattainment area SIP requirements for the 2008 ozone NAAQS. 80 FR 12264. This final rule also revoked the 1997 ozone NAAQS and established anti-backsliding requirements for areas not attaining the 1997 ozone NAAQS in 40 CFR 51.1105 that became effective once the 1997 ozone NAAQS was revoked. The anti-backsliding provisions require states to retain all applicable control requirements for the 1997 ozone NAAQS, while enabling states, where possible, to focus planning efforts on meeting the more protective 2008 ozone NAAQS. According to EPA's final rule, the revocation of the 1997 ozone NAAQS was effective as of April 6, 2015. On September 9, 2016, Virginia amended the Virginia Administrative Code to be consistent with EPA's March 6, 2015 final rule. On February 10, 2017, Virginia, through the Virginia Department of Environmental Quality (VADEQ), formally submitted a SIP revision (Revision G16) reflecting these amendments. On August 17, 2017 (82 FR 39097 and 82 FR 39031), EPA simultaneously published a notice of proposed rulemaking (NPR) and a direct final rule (DFR) for Virginia approving the SIP revision. EPA received two adverse comments on the rulemaking and attempted to withdraw the DFR prior to [[Page 7611]] the effective date of October 16, 2017. However, EPA inadvertently did not withdraw the DFR prior to that date and the rule automatically and prematurely became effective on October 16, 2017, revising Virginia's SIP to reflect the revocation of the 1997 ozone NAAQS. In the NPR, EPA had proposed to approve the SIP revision, which included amendments made to provisions in Virginia's State Air Pollution Control Board's Regulations for the Control and Abatement of Air Pollution including 9VAC5-20-204, 9VAC5-30-55, 9VAC5-151-20, and 9VAC5-160-30. These revisions to the Virginia Administrative Code amended Virginia's regulatory provisions to reflect EPA's revocation of the 1997 ozone NAAQS and the implementation of the 2008 ozone NAAQS. In this final rulemaking, EPA is responding to the comments submitted on the proposed revision to the Virginia SIP and is reapproving the revisions to the Virginia SIP to reflect the revocation of the 1997 ozone NAAQS after our failure to withdraw the DFR (after EPA received adverse public comments) prior to the October 16, 2017 effective date of the DFR. II. Summary of SIP Revision and EPA Analysis Virginia's February 10, 2017 SIP submittal included amended versions of 9VAC5-20-204, 9VAC5-30-55, 9VAC5-151-20, and 9VAC5-160-30. Virginia requested that EPA approve the SIP revision so that these amended regulations would become part of the Virginia SIP. The amendment to 9VAC5-20-204 added text stating that the list of Northern Virginia moderate nonattainment areas under the 1997 ozone NAAQS is no longer effective after April 6, 2015, the effective date of the revocation of the 1997 ozone NAAQS. The amendment to 9VAC5-30-55 added text stating that the primary and secondary ambient air quality standard of 0.08 ppm shall no longer apply after April 6, 2015. Virginia also amended the Regulation for Transportation Conformity and the Regulation for General Conformity by adding clarifying text to 9VAC5-151-20 and 9VAC5-160-30 stating that ``The provisions of this chapter shall not apply in nonattainment and maintenance areas that were designated nonattainment or maintenance under a federal standard that has been revoked.'' These revisions to the Virginia Administrative Code reflect EPA's revocation of the 1997 ozone NAAQS. EPA's review of this material indicates the February 10, 2017 submittal is approvable as it revises regulations to be consistent with EPA's final rule implementing the 2008 ozone NAAQS. See 80 FR 12264 (March 6, 2015). The revisions update regulations to reflect the revocation of the 1997 NAAQS, which was effective April 6, 2015. Therefore, the revisions do not affect emissions of air pollutants or interfere with any applicable requirement concerning attainment or reasonable further progress or any other applicable requirements in the CAA. Thus, EPA finds the revision approvable in accordance with section 110, including section 110(l), of the CAA. III. Public Comments and EPA's Responses EPA received two anonymous public comments on our action to approve the February 10, 2017 SIP submittal. Comment: The first commenter stated that EPA cannot revoke the 1997 ozone NAAQS and cited a current court case in the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit). The commenter recommended that EPA wait until the D.C. Circuit's decision and not ``loosen standards.'' Response: EPA would like to clarify that the proposed revision to the Virginia SIP does not revoke the 1997 ozone NAAQS as the 1997 ozone NAAQS were revoked previously by EPA in a separate rulemaking effective April 6, 2015. See 80 FR 12264. The commenter's ability to challenge revocation of the 1997 ozone NAAQS was in that prior rulemaking. This particular rulemaking action is only removing references to the ``revoked'' 1997 ozone NAAQS that had been in Virginia's SIP. Thus, the commenter's statement that EPA should not revoke the 1997 ozone NAAQS is not relevant to this rulemaking. EPA acknowledges that there is presently a legal challenge in the D.C. Circuit to the rulemaking which revoked the 1997 ozone NAAQS.\3\ However, EPA disagrees with the commenter that EPA should wait for the outcome of this litigation before approving the Virginia SIP revision. As stated above, this SIP revision does not revoke the 1997 ozone NAAQS as the revocation of the NAAQS was effective on April 6, 2015 per EPA's March 6, 2015 rule. Additionally, nothing in section 110 of the CAA prevents Virginia from removing its references to the revoked 1997 ozone NAAQS from its SIP, as the removal does not affect emissions of air pollutants as it does not impact any applicable SIP requirements that apply to an area, interfere with any applicable requirements in the CAA, nor interfere with reasonable further progress. See section 110(l) of the CAA. Thus, EPA finds the revision approvable in accordance with section 110, including section 110(l), of the CAA. --------------------------------------------------------------------------- \3\ South Coast Air Quality Management District v. EPA, Case Nos. 15-1115, 15-1123 (U.S. Court of Appeals, D.C. Cir.). --------------------------------------------------------------------------- In response to the commenter's concern that EPA's approval will ``loosen standards,'' EPA notes that the 2008 ozone NAAQS of 0.075 ppm, which EPA is presently implementing in collaboration with states such as Virginia, is more protective of human health and the environment than the 1997 ozone NAAQS of 0.08 ppm. In addition, the ozone nonattainment areas in Virginia are the same for the 1997 ozone NAAQS as for the 2008 ozone NAAQS. Thus, removing the revoked 1997 ozone NAAQS from the Virginia SIP is not expected to have any emissions impact nor interfere with reasonable further progress or any applicable CAA requirement. See also 80 FR 12264. Comment Summary: The second commenter requested that EPA not revoke the ozone NAAQS. Response: As discussed in detail in response to the first comment, EPA's approval of the removal of references in the Virginia SIP to the revoked 1997 ozone NAAQS does not actually revoke the 1997 ozone NAAQS as EPA previously effectuated that revocation in a prior, separate rulemaking. See 80 FR 12264. IV. Final Action EPA is approving the Virginia SIP revision submitted on February 10, 2017, which includes amendments made to several sections of the Virginia Administrative Code, including 9VAC5-20-204, 9VAC5-30-55, 9VAC5-151-20, and 9VAC5-160-30, as a revision to the Virginia SIP because the revisions meet the requirements of CAA section 110. EPA is reapproving the revisions to Virginia's SIP because the revisions were added to the SIP prematurely on October 16, 2017 when EPA failed to withdraw its DFR after receiving two adverse comments on our direct final approval of the revisions to the Virginia SIP to reflect the revocation of the 1997 ozone NAAQS. This rule, which responds to the adverse comments received, finalizes our approval. V. General Information Pertaining to SIP Submittals From the Commonwealth of Virginia In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) ``privilege'' for voluntary compliance evaluations [[Page 7612]] performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law. On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information ``required by law,'' including documents and information ``required by federal law to maintain program delegation, authorization or approval,'' since Virginia must ``enforce federally authorized environmental programs in a manner that is no less stringent than their federal counterparts. . . .'' The opinion concludes that ``[r]egarding Sec. 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by federal law to maintain program delegation, authorization or approval.'' Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that ``[t]o the extent consistent with requirements imposed by federal law,'' any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since ``no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with federal law, which is one of the criteria for immunity.'' Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law. VI. Incorporation by Reference In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the revisions to 9VAC5-20-204, 9VAC5-30-55, 9VAC5-151-20, and 9VAC5-160-30 of the State Air Pollution Control Board's Regulation for the Control and Abatement of Air Pollution discussed in Section II of this preamble. EPA has made, and will continue to make, these materials generally available through http://www.regulations.gov and at the EPA Region III Office (please contact the person identified in the For Further Information Contact section of this preamble for more information). These materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.\4\ --------------------------------------------------------------------------- \4\ 62 FR 27968 (May 22, 1997). --------------------------------------------------------------------------- VII. Statutory and Executive Order Reviews A. General Requirements Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:Is not a ``significant regulatory action'' subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011); is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866; does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4); does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as [[Page 7613]] specified by Executive Order 13175 (65 FR 67249, November 9, 2000). B. Submission to Congress and the Comptroller General The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ``major rule'' as defined by 5 U.S.C. 804(2). C. Petitions for Judicial Review Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 23, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action to approve revised provisions of the Virginia Administrative Code including 9VAC5-20-204, 9VAC5-30-55, 9VAC5-151-20, and 9VAC5-160-30 for inclusion in the Virginia SIP may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. Dated: February 9, 2018. Cosmo Servidio, Regional Administrator, Region III. 40 CFR part 52 is amended as follows: PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 0 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 et seq. Subpart VV--Virginia 0 2. In Sec. 52.2420, the table in paragraph (c) is amended by revising the entries for Sections 5-20-204, 5-30-55, 5-151-20, and 5-160-30. The revised text reads as follows: Sec. 52.2420 Identification of plan. * * * * * (c) * * * EPA-Approved Virginia Regulations and Statutes -------------------------------------------------------------------------------------------------------------------------------------------------------- State Explanation [former SIP State citation Title/subject effective date EPA approval date citation] -------------------------------------------------------------------------------------------------------------------------------------------------------- * * * * * * * -------------------------------------------------------------------------------------------------------------------------------------------------------- 9 VAC 5, Chapter 20 General Provisions -------------------------------------------------------------------------------------------------------------------------------------------------------- * * * * * * * -------------------------------------------------------------------------------------------------------------------------------------------------------- Part II Air Quality Programs -------------------------------------------------------------------------------------------------------------------------------------------------------- * * * * * * * 5-20-204...................... Nonattainment Areas........................... 11/16/16 2/22/18, [Insert Federal Addition of Subdivision C. Register Citation]. Previous approval 8/14/15. * * * * * * * -------------------------------------------------------------------------------------------------------------------------------------------------------- 9 VAC 5, Chapter 30 Ambient Air Quality Standards [Part III] -------------------------------------------------------------------------------------------------------------------------------------------------------- * * * * * * * 5-30-55....................... Ozone (8-hour, 0.08 ppm)...................... 11/16/16 2/22/18, [Insert Federal Subdivision D. is revised to Register Citation]. read that the 1997 8-hour ozone NAAQS no longer apply after April 6, 2015. Previous approval 6/11/13. * * * * * * * -------------------------------------------------------------------------------------------------------------------------------------------------------- 9 VAC 5, Chapter 151 Transportation Conformity -------------------------------------------------------------------------------------------------------------------------------------------------------- * * * * * * * -------------------------------------------------------------------------------------------------------------------------------------------------------- Part II General Provisions -------------------------------------------------------------------------------------------------------------------------------------------------------- 5-151-20...................... Applicability................................. 11/16/16 2/22/18, [Insert Federal Subdivision B. is amended to Register Citation]. address revoked federal standards. Previous approval 11/20/09. [[Page 7614]] * * * * * * * -------------------------------------------------------------------------------------------------------------------------------------------------------- 9 VAC 5, Chapter 160 General Conformity -------------------------------------------------------------------------------------------------------------------------------------------------------- * * * * * * * -------------------------------------------------------------------------------------------------------------------------------------------------------- Part II General Provisions -------------------------------------------------------------------------------------------------------------------------------------------------------- 5-160-30...................... Applicability................................. 11/16/16 2/22/18, [Insert Federal Subdivision A. is amended to Register Citation]. address revoked federal standards. Previous approval 12/12/11. * * * * * * * -------------------------------------------------------------------------------------------------------------------------------------------------------- * * * * * [FR Doc. 2018-03524 Filed 2-21-18; 8:45 am] BILLING CODE 6560-50-P
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Location Name
* * * * * * *
McKinney, Texas ...................................................................................... McKinney National Airport.
Melbourne, Florida .................................................................................... Orlando Melbourne International Airport.
* * * * * * *
Midland, Texas ......................................................................................... Midland International Air and Space Port.
* * * * * * *
Rogers, Arkansas ..................................................................................... Rogers Executive Airport—Carter Field.
* * * * * * *
South Bend, Indiana ................................................................................. South Bend International Airport.
St. Augustine, Florida ............................................................................... Northeast Florida Regional Airport.
* * * * * * *
Waukegan, Illinois ..................................................................................... Waukegan National Airport.
* * * * * * *
* * * * * Although listed in the index, some strengthened the 8-hour ozone NAAQS
Dated: February 15, 2018. information is not publicly available, from 0.08 to 0.075 ppm. The 0.075 ppm
Kevin K. McAleenan,
e.g., confidential business information standard is referred to as the 2008 ozone
(CBI) or other information whose NAAQS and is more stringent than the
Acting Commissioner, U.S. Customs and
Border Protection.
disclosure is restricted by statute. previous 1997 ozone NAAQS. See 73 FR
Certain other material, such as 16436 (March 27, 2008).2
[FR Doc. 2018–03581 Filed 2–21–18; 8:45 am]
copyrighted material, is not placed on On March 6, 2015, EPA issued a final
BILLING CODE 9111–14–P rule addressing a range of
the internet and will be publicly
available only in hard copy form. nonattainment area SIP requirements for
Publicly available docket materials are the 2008 ozone NAAQS. 80 FR 12264.
ENVIRONMENTAL PROTECTION available through http:// This final rule also revoked the 1997
AGENCY www.regulations.gov, or please contact ozone NAAQS and established anti-
the person identified in the FOR FURTHER backsliding requirements for areas not
40 CFR Part 52 attaining the 1997 ozone NAAQS in 40
INFORMATION CONTACT section for
[EPA–R03–OAR–2017–0382; FRL–9974– additional availability information. CFR 51.1105 that became effective once
66—Region 3] FOR FURTHER INFORMATION CONTACT: Sara
the 1997 ozone NAAQS was revoked.
Calcinore, (215) 814–2043, or by email The anti-backsliding provisions require
Approval and Promulgation of Air at calcinore.sara@epa.gov. states to retain all applicable control
Quality Implementation Plans; Virginia; requirements for the 1997 ozone
Revisions To Implement the SUPPLEMENTARY INFORMATION: NAAQS, while enabling states, where
Revocation of the 1997 Ozone NAAQS I. Background possible, to focus planning efforts on
meeting the more protective 2008 ozone
AGENCY: Environmental Protection Under the CAA, EPA establishes NAAQS. According to EPA’s final rule,
Agency (EPA). NAAQS for criteria pollutants 1 in order the revocation of the 1997 ozone
ACTION: Final rule. to protect human health and the NAAQS was effective as of April 6,
environment. In response to scientific 2015.
SUMMARY: The Environmental Protection evidence linking ozone exposure to On September 9, 2016, Virginia
Agency (EPA) is taking final action to adverse health effects, EPA promulgated amended the Virginia Administrative
approve revisions to the Commonwealth the first ozone NAAQS, the 0.12 part per Code to be consistent with EPA’s March
of Virginia (Virginia) state million (ppm) 1-hour ozone NAAQS, in 6, 2015 final rule. On February 10, 2017,
implementation plan (SIP). The 1979. See 44 FR 8202 (February 8, Virginia, through the Virginia
revisions are related to the 1979). The CAA requires EPA to review Department of Environmental Quality
implementation of the 2008 ozone and reevaluate the NAAQS every 5 (VADEQ), formally submitted a SIP
national ambient air quality standards years in order to consider updated revision (Revision G16) reflecting these
(NAAQS or standards) and the information regarding the effects of the amendments.
revocation of the 1997 ozone NAAQS. criteria pollutants on human health and On August 17, 2017 (82 FR 39097 and
EPA is approving these revisions the environment. On July 18, 1997, EPA 82 FR 39031), EPA simultaneously
updating the Virginia SIP to reflect the promulgated a revised ozone NAAQS, published a notice of proposed
revocation of the 1997 ozone NAAQS in referred to as the 1997 ozone NAAQS, rulemaking (NPR) and a direct final rule
accordance with the requirements of the of 0.08 ppm averaged over eight hours. (DFR) for Virginia approving the SIP
Clean Air Act (CAA). 62 FR 38855. This 8-hour ozone NAAQS revision. EPA received two adverse
DATES: This final rule is effective on was determined to be more protective of comments on the rulemaking and
daltland on DSKBBV9HB2PROD with RULES
March 26, 2018. public health than the previous 1979 1- attempted to withdraw the DFR prior to
ADDRESSES: EPA has established a
hour ozone NAAQS. In 2008, EPA
2 On October 1, 2015, EPA strengthened the
docket for this action under Docket ID 1 The‘‘criteria pollutants’’ include ozone (O3), ground-level ozone NAAQS to 0.070 ppm. See 80
Number EPA–R03–OAR–2017–0382. All particulate matter (PM), sulfur dioxide (SO2), FR 65292 (October 26, 2015). This rulemaking
documents in the docket are listed on nitrogen dioxide (NO2), carbon monoxide (CO), and addresses the 2008 ozone NAAQS and does not
the http://www.regulations.gov website. lead (Pb). address the 2015 ozone NAAQS.
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performed by a regulated entity. The renders this statute inapplicable to CAA and applicable federal regulations.
legislation further addresses the relative enforcement of any federally authorized 42 U.S.C. 7410(k); 40 CFR 52.02(a).
burden of proof for parties either programs, since ‘‘no immunity could be Thus, in reviewing SIP submissions,
asserting the privilege or seeking afforded from administrative, civil, or EPA’s role is to approve state choices,
disclosure of documents for which the criminal penalties because granting provided that they meet the criteria of
privilege is claimed. Virginia’s such immunity would not be consistent the CAA. Accordingly, this action
legislation also provides, subject to with federal law, which is one of the merely approves state law as meeting
certain conditions, for a penalty waiver criteria for immunity.’’ federal requirements and does not
for violations of environmental laws Therefore, EPA has determined that impose additional requirements beyond
when a regulated entity discovers such Virginia’s Privilege and Immunity those imposed by state law. For that
violations pursuant to a voluntary statutes will not preclude the reason, this action:
compliance evaluation and voluntarily Commonwealth from enforcing its • Is not a ‘‘significant regulatory
discloses such violations to the program consistent with the federal action’’ subject to review by the Office
Commonwealth and takes prompt and requirements. In any event, because of Management and Budget under
appropriate measures to remedy the EPA has also determined that a state Executive Orders 12866 (58 FR 51735,
violations. Virginia’s Voluntary audit privilege and immunity law can October 4, 1993) and 13563 (76 FR 3821,
Environmental Assessment Privilege affect only state enforcement and cannot January 21, 2011);
Law, Va. Code Sec. 10.1–1198, provides have any impact on federal enforcement • is not an Executive Order 13771 (82
a privilege that protects from disclosure authorities, EPA may at any time invoke FR 9339, February 2, 2017) regulatory
documents and information about the its authority under the CAA, including, action because SIP approvals are
content of those documents that are the for example, sections 113, 167, 205, 211 exempted under Executive Order 12866;
product of a voluntary environmental or 213, to enforce the requirements or • does not impose an information
assessment. The Privilege Law does not prohibitions of the state plan, collection burden under the provisions
extend to documents or information independently of any state enforcement of the Paperwork Reduction Act (44
that: (1) Are generated or developed effort. In addition, citizen enforcement U.S.C. 3501 et seq.);
before the commencement of a under section 304 of the CAA is • is certified as not having a
voluntary environmental assessment; (2) likewise unaffected by this, or any, state significant economic impact on a
are prepared independently of the audit privilege or immunity law. substantial number of small entities
assessment process; (3) demonstrate a under the Regulatory Flexibility Act (5
clear, imminent and substantial danger VI. Incorporation by Reference U.S.C. 601 et seq.);
to the public health or environment; or In this rule, EPA is finalizing • does not contain any unfunded
(4) are required by law. regulatory text that includes mandate or significantly or uniquely
On January 12, 1998, the incorporation by reference. In affect small governments, as described
Commonwealth of Virginia Office of the accordance with requirements of 1 CFR in the Unfunded Mandates Reform Act
Attorney General provided a legal 51.5, EPA is finalizing the incorporation of 1995 (Pub. L. 104–4);
opinion that states that the Privilege by reference of the revisions to 9VAC5– • does not have federalism
law, Va. Code Sec. 10.1–1198, precludes 20–204, 9VAC5–30–55, 9VAC5–151–20, implications as specified in Executive
granting a privilege to documents and and 9VAC5–160–30 of the State Air Order 13132 (64 FR 43255, August 10,
information ‘‘required by law,’’ Pollution Control Board’s Regulation for 1999);
including documents and information the Control and Abatement of Air • is not an economically significant
‘‘required by federal law to maintain Pollution discussed in Section II of this regulatory action based on health or
program delegation, authorization or preamble. EPA has made, and will safety risks subject to Executive Order
approval,’’ since Virginia must ‘‘enforce continue to make, these materials 13045 (62 FR 19885, April 23, 1997);
federally authorized environmental • is not a significant regulatory action
generally available through http://
programs in a manner that is no less subject to Executive Order 13211 (66 FR
www.regulations.gov and at the EPA
stringent than their federal 28355, May 22, 2001);
Region III Office (please contact the • is not subject to requirements of
counterparts. . . .’’ The opinion person identified in the FOR FURTHER
concludes that ‘‘[r]egarding § 10.1–1198, Section 12(d) of the National
INFORMATION CONTACT section of this
therefore, documents or other Technology Transfer and Advancement
preamble for more information). These Act of 1995 (15 U.S.C. 272 note) because
information needed for civil or criminal
materials have been approved by EPA application of those requirements would
enforcement under one of these
for inclusion in the SIP, have been be inconsistent with the CAA; and
programs could not be privileged
incorporated by reference by EPA into • does not provide EPA with the
because such documents and
that plan, are fully federally enforceable discretionary authority to address, as
information are essential to pursuing
under sections 110 and 113 of the CAA appropriate, disproportionate human
enforcement in a manner required by
as of the effective date of the final health or environmental effects, using
federal law to maintain program
rulemaking of EPA’s approval, and will practicable and legally permissible
delegation, authorization or approval.’’
Virginia’s Immunity law, Va. Code be incorporated by reference by the methods, under Executive Order 12898
Sec. 10.1–1199, provides that ‘‘[t]o the Director of the Federal Register in the (59 FR 7629, February 16, 1994).
extent consistent with requirements next update to the SIP compilation.4 The SIP is not approved to apply on
imposed by federal law,’’ any person VII. Statutory and Executive Order any Indian reservation land as defined
making a voluntary disclosure of Reviews in 18 U.S.C. 1151 or in any other area
where EPA or an Indian tribe has
daltland on DSKBBV9HB2PROD with RULES
information to a state agency regarding
a violation of an environmental statute, A. General Requirements demonstrated that a tribe has
regulation, permit, or administrative Under the CAA, the Administrator is jurisdiction. In those areas of Indian
order is granted immunity from required to approve a SIP submission country, the rule does not have tribal
administrative or civil penalty. The that complies with the provisions of the implications and will not impose
Attorney General’s January 12, 1998 substantial direct costs on tribal
opinion states that the quoted language 4 62 FR 27968 (May 22, 1997). governments or preempt tribal law as
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![Federal Register / Vol. 83, No. 36 / Thursday, February 22, 2018 / Rules and Regulations 7613
specified by Executive Order 13175 (65 C. Petitions for Judicial Review Reporting and recordkeeping
FR 67249, November 9, 2000). Under section 307(b)(1) of the CAA, requirements, Volatile organic
petitions for judicial review of this compounds.
B. Submission to Congress and the
Comptroller General action must be filed in the United States Dated: February 9, 2018.
Court of Appeals for the appropriate Cosmo Servidio,
The Congressional Review Act, 5 circuit by April 23, 2018. Filing a Regional Administrator, Region III.
U.S.C. 801 et seq., as added by the Small petition for reconsideration by the
40 CFR part 52 is amended as follows:
Business Regulatory Enforcement Administrator of this final rule does not
Fairness Act of 1996, generally provides affect the finality of this action for the PART 52—APPROVAL AND
that before a rule may take effect, the purposes of judicial review nor does it PROMULGATION OF
agency promulgating the rule must extend the time within which a petition IMPLEMENTATION PLANS
submit a rule report, which includes a for judicial review may be filed, and
copy of the rule, to each House of the shall not postpone the effectiveness of ■ 1. The authority citation for part 52
Congress and to the Comptroller General such rule or action. continues to read as follows:
of the United States. EPA will submit a This action to approve revised Authority: 42 U.S.C. 7401 et seq.
report containing this action and other provisions of the Virginia
Administrative Code including 9VAC5– Subpart VV—Virginia
required information to the U.S. Senate,
20–204, 9VAC5–30–55, 9VAC5–151–20,
the U.S. House of Representatives, and
and 9VAC5–160–30 for inclusion in the ■ 2. In § 52.2420, the table in paragraph
the Comptroller General of the United Virginia SIP may not be challenged later (c) is amended by revising the entries
States prior to publication of the rule in in proceedings to enforce its for Sections 5–20–204, 5–30–55, 5–151–
the Federal Register. A major rule requirements. (See section 307(b)(2).) 20, and 5–160–30. The revised text
cannot take effect until 60 days after it reads as follows:
is published in the Federal Register. List of Subjects in 40 CFR Part 52
This action is not a ‘‘major rule’’ as Environmental protection, Air § 52.2420 Identification of plan.
defined by 5 U.S.C. 804(2). pollution control, Incorporation by * * * * *
reference, Nitrogen dioxide, Ozone, (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 20 General Provisions
* * * * * * *
Part II Air Quality Programs
* * * * * * *
5–20–204 .......... Nonattainment Areas ............. 11/16/16 2/22/18, [Insert Federal Addition of Subdivision C.
Register Citation]. Previous approval 8/14/15.
* * * * * * *
9 VAC 5, Chapter 30 Ambient Air Quality Standards [Part III]
* * * * * * *
5–30–55 ............ Ozone (8-hour, 0.08 ppm) ..... 11/16/16 2/22/18, [Insert Federal Subdivision D. is revised to read that the 1997
Register Citation]. 8-hour ozone NAAQS no longer apply after
April 6, 2015.
Previous approval 6/11/13.
* * * * * * *
9 VAC 5, Chapter 151 Transportation Conformity
* * * * * * *
daltland on DSKBBV9HB2PROD with RULES
Part II General Provisions
5–151–20 .......... Applicability ............................ 11/16/16 2/22/18, [Insert Federal Subdivision B. is amended to address revoked
Register Citation]. federal standards.
Previous approval 11/20/09.
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![7614 Federal Register / Vol. 83, No. 36 / Thursday, February 22, 2018 / Rules and Regulations
EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES—Continued
State effective Explanation
State citation Title/subject EPA approval date
date [former SIP citation]
* * * * * * *
9 VAC 5, Chapter 160 General Conformity
* * * * * * *
Part II General Provisions
5–160–30 .......... Applicability ............................ 11/16/16 2/22/18, [Insert Federal Subdivision A. is amended to address revoked
Register Citation]. federal standards.
Previous approval 12/12/11.
* * * * * * *
* * * * * revision concerns emissions of lead- available through http://
[FR Doc. 2018–03524 Filed 2–21–18; 8:45 am] bearing fugitive dust from roads, storage www.regulations.gov, or please contact
BILLING CODE 6560–50–P piles and other activities associated the person identified in the FOR FURTHER
with the primary copper smelter located INFORMATION CONTACT section for
in Hayden, Arizona. We are approving additional availability information.
ENVIRONMENTAL PROTECTION a state rule and associated appendix to FOR FURTHER INFORMATION CONTACT:
AGENCY regulate these emissions under the Christine Vineyard, EPA Region IX,
Clean Air Act (CAA or the Act). (415) 947–4125, vineyard.christine@
40 CFR Part 52
DATES: This rule is effective on March epa.gov.
[EPA–R09–OAR–2017–0468; FRL–9974– 26, 2018.
68—Region 9] SUPPLEMENTARY INFORMATION:
ADDRESSES: The EPA has established a
Throughout this document, ‘‘we,’’ ‘‘us’’
docket for this action under Docket ID
Approval of Arizona Air Plan and ‘‘our’’ refer to the EPA.
No. EPA–R09–OAR–2017–0468. All
Revisions, Arizona Department of
documents in the docket are listed on Table of Contents
Environmental Quality
the http://www.regulations.gov website. I. Proposed Action
AGENCY: Environmental Protection Although listed in the index, some II. Public Comments and EPA Responses
Agency (EPA). information is not publicly available, III. EPA Action
ACTION: Final rule. e.g., Confidential Business Information IV. Incorporation by Reference
(CBI) or other information whose V. Statutory and Executive Order Reviews
SUMMARY: The Environmental Protection disclosure is restricted by statute.
I. Proposed Action
Agency (EPA) is taking final action to Certain other material, such as
approve a revision to the Arizona copyrighted material, is not placed on On November 27, 2017 (82 FR 55966),
Department of Environmental Quality the internet and will be publicly the EPA proposed to approve the
(ADEQ) portion of the Arizona State available only in hard copy form. following rule and appendix into the
Implementation Plan (SIP). This Publicly available docket materials are Arizona SIP.
Local agency Rule No. Rule title Submitted
ADEQ ................ R18–2–B1301.01 ............... Limits on Lead-Bearing Fugitive Dust from the Hayden Smelter ....................... 04/06/17
ADEQ ................ Appendix 15 ....................... Test Methods for Determining Opacity and Stabilization of Unpaved Roads .... 04/06/17
We proposed to approve the rule and greenhouse-gas and other emissions III. EPA Action
associated appendix because we from wildfires. A third commenter
determined that they comply with the requested that the EPA ‘‘regulate the No comments were submitted that
relevant CAA requirements. Our change our assessment of the rule and
amount of poisonous dust that is kicked
proposed action contains more associated appendix as described in our
up into the air.’’ As explained in our
information on the rule and associated proposed action. Therefore, as
proposed action, Rule R18–2–B1301.01 authorized in section 110(k)(3) of the
appendix and our evaluation. establishes requirements to control lead- Act, the EPA is fully approving this rule
II. Public Comments and EPA bearing fugitive dust emissions and associated appendix into the
Responses surrounding the Hayden copper smelter. Arizona SIP.
The EPA’s proposed action provided Our approval of this rule into the
daltland on DSKBBV9HB2PROD with RULES
Arizona SIP will make these IV. Incorporation by Reference
a 30-day public comment period. During
this period, we received three requirements federally enforceable. In this rule, the EPA is finalizing
comments. Two commenters raised Commenters did not raise any specific regulatory text that includes
issues that are outside of the scope of issues germane to the approvability of incorporation by reference. In
this rulemaking, including forest the rule and appendix. accordance with requirements of 1 CFR
management, wildfire suppression, and 51.5, the EPA is finalizing the
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Document Created: 2018-02-22 02:51:12
Document Modified: 2018-02-22 02:51:12
| 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 March 26, 2018. | |
| Contact | Sara Calcinore, (215) 814-2043, or by email at [email protected] | |
| FR Citation | 83 FR 7610 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Incorporation by Reference; Nitrogen Dioxide; Ozone; Reporting and Recordkeeping Requirements and Volatile Organic Compounds |
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