2015-12351. Approval and Promulgation of Air Quality Implementation Plans; Virginia; Revisions to the Attainment Plans for the Commonwealth of Virginia Portion of the Washington, DC-MD-VA 1990 1-Hour and 1997 8-Hour Ozone Nonattainment Areas and the ...

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the Commonwealth of Virginia (Virginia) State Implementation Plan (SIP). These revisions remove the Stage II vapor recovery program (Stage II) from the attainment plans for the Virginia portion of the Washington, DC-MD-VA 1990 1-Hour and 1997 8-Hour Ozone National Ambient Air Quality Standard (NAAQS) Nonattainment Areas (Northern Virginia Areas), as well as from the maintenance plan for the Fredericksburg 1997 8-Hour Ozone NAAQS Maintenance Area (Fredericksburg Area) (the three areas are collectively referred to as the Virginia Areas or Areas). These revisions also include an analysis that addresses the impact of the removal of Stage II from subject gasoline dispensing facilities (GDFs) in the Virginia Areas. The analysis submitted by the Commonwealth satisfies the requirements of the Clean Air Act (CAA). EPA is approving these revisions in accordance with the requirements of the CAA.

DATES:

This rule is effective on July 27, 2015 without further notice, unless EPA receives adverse written comment by June 25, 2015. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID Number EPA-R03-OAR-2014-0422 by one of the following methods:

A. www.regulations.gov. Follow the on-line instructions for submitting comments.

B. Email: [e-mail].

C. Mail: EPA-R03-OAR-2014-0422, Cristina Fernandez, Associate Director, Office of Air Program Planning, Mailcode 3AP30, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.

D. Hand Delivery: At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-2014-0422. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at www.regulations.gov,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov,, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT:

Asrah Khadr, [phone], or by email at [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

On March 18, 2014, Virginia submitted formal revisions to its SIP through the Virginia Department of Environmental Quality (VADEQ). These SIP revisions consist of the removal of Stage II from the attainment and maintenance plans for the Virginia Areas. The SIP revisions also consists of an analysis demonstrating that the removal of Stage II from the Virginia Areas' attainment and maintenance plans will not cause any increase in emissions. This analysis satisfies the requirements of section 110(l) of the CAA because it demonstrates the SIP revision will not interfere with any applicable requirements concerning attainment or reasonable further progress (RFP) of the NAAQS nor interfere with any other CAA applicable requirement. Virginia's analysis shows that the removal of Stage II from these Areas will not worsen air quality nor interfere with attainment or maintenance of the NAAQS in the Areas. The analysis also satisfies the requirements of CAA section 184(b)(2) for comparability of control measures with the emissions reductions from Stage II for the portion of the Areas in the Ozone Transport Region (OTR).

Stage II is a means of capturing gasoline vapors displaced during transfer of gasoline from the gasoline dispensing unit to the motor vehicle fuel tank during vehicle refueling at a GDF. Stage II involves the use of special refueling nozzles and coaxial hoses for vapor collection at each gasoline pump at a subject GDF. Gasoline vapors belong to a class of pollutants known as volatile organic compounds (VOCs). These compounds along with nitrogen oxides (NO_X) are precursors to the formation of ozone. Stage II gasoline vapor recovery systems have been a required emission control measure in areas classified as serious, severe, and extreme for the ozone NAAQS.

The amendment of the CAA in 1990 required, under CAA section 182(b)(3), Stage II controls for moderate ozone nonattainment areas and Stage II or comparable controls in the OTR. See CAA section 184(a) and (b)(2). However, under section 202(a)(6) of the CAA, the requirements of section 182(b)(3) would no longer apply in moderate ozone nonattainment areas upon EPA promulgation of standards for onboard refueling vapor recovery (ORVR) as part of new motor vehicles' emission control systems, and would no longer apply in serious or above ozone areas after EPA's determination that ORVR technology is in widespread use. ORVR is a mechanism employed by vehicles to re-use the vapors in their gas tanks instead of allowing them to escape. Over time, non-ORVR vehicles continued to be replaced by ORVR-equipped vehicles. On May 16, 2012, EPA determined that ORVR technology is in widespread use throughout the U.S. vehicle fleet and waived the requirement for states to implement Stage II vapor recovery at GDFs in nonattainment areas classified as Serious or above for the ozone NAAQS. In that rulemaking, EPA determined that emission reductions from ORVR-equipped vehicles were essentially equal to and would soon surpass the emission reductions achieved by Stage II alone, and that a state previously required to implement a Stage II vapor recovery program may take appropriate action to remove the measure from its SIP. See 77 FR 28772 (further providing that states could address CAA section 110(l) for removal of Stage II by showing removal would not result in an emissions increase).

The Washington, DC-MD-VA 1990 1-Hour Ozone Nonattainment Area was designated as a serious nonattainment area under the 1990 1-Hour Ozone NAAQS. The Washington, DC-MD-VA 1997 8-Hour Ozone NAAQS Nonattainment Area was designated as moderate under the 1997 8-Hour Ozone NAAQS. The Fredericksburg Area for the 1997 8-Hour Ozone NAAQS was designated as a moderate nonattainment area.

On December 19, 1997, the District of Columbia, Maryland, and Virginia (the three States) submitted an attainment plan for the Washington, DC-MD-VA 1990 1-Hour Ozone NAAQS Nonattainment Area. On April 17, 2003 (68 FR 19106), EPA conditionally approved the attainment plan. However, on November 13, 2002 (67 FR 68805), EPA reclassified the Area as severe nonattainment. To meet the requirements of the severe classification, the three States submitted an attainment plan on February 24, 2004. On May 13, 2005 (70 FR 25688), this attainment plan was approved.

On June 12, 2007, the three States submitted an attainment plan for the Washington, DC-MD-VA 1997 8-Hour Ozone NAAQS Nonattainment Area, which EPA proposed to approve on March 20, 2013 (78 FR 17161). Subsequently on February 28, 2012 (77 FR 11739), EPA published a clean data determination as well as a determination of attainment that the Area met the 1997 8-Hour Ozone NAAQS by its mandated attainment date, which was based on the 2008 to 2010 monitored air quality data. While the clean data determination suspended the requirement to submit certain planning-related SIPs for the Area, including the attainment demonstration, EPA was not precluded from acting on an attainment demonstration submitted for the Area. On April 10, 2015 (80 FR 19206), EPA approved the attainment plan. On September 28, 2005, a redesignation request and maintenance plan for the Fredericksburg Area were submitted by Virginia. On December 23, 2005 (70 FR 76165), EPA approved the Fredericksburg Area redesignation request and maintenance plan.

The 1990 1-Hour Ozone NAAQS was revoked on June 15, 2005. However, EPA's implementation rule for the 1997 8-Hour Ozone NAAQS retained the Stage II-related requirements under CAA section 182(b)(3), for certain areas under the 1-Hour Ozone NAAQS (see 40 CFR 51.900(f)). Therefore, the 1997 8-Hour Ozone NAAQS attainment plan for the Washington, DC-MD-VA Area was required to contain provisions for the implementation of Stage II.

II. Summary of SIP Revisions and EPA Analysis

The March 18, 2014 SIP revision submitted by VADEQ seeks removal of Stage II from the attainment and maintenance plans for the Virginia Areas. The analysis submitted by VADEQ for the SIP revision addresses the effects of removing Stage II from the Virginia Areas. In accordance with section 110(l) of the CAA, the analysis demonstrates that the removal of Stage II from the Virginia Areas will not interfere with the attainment or maintenance of the NAAQS. The analysis also meets the requirements of CAA section 184(b)(2), which the Northern Virginia Area is subject to because it is a part of the OTR. For this analysis, VADEQ followed EPA's August 7, 2012 Guidance on Removing Stage II Gasoline Vapor Control Programs from State Implementation Plans and Assessing Comparable Measures. The guidance document provides a method in which states could provide certain calculations showing that increased emissions from non-ORVR compatible Stage II would eventually negate benefits from the implementation of Stage II. Also, the guidance gives the states flexibility to provide additional or alternate analyses to EPA for consideration.

As recommended by the guidance, VADEQ calculated the area-wide (the Virginia Areas) VOC inventory emissions benefits from Stage II. These calculations show the point at which the emissions increases from non-ORVR compatible Stage II would overtake emissions benefits from Stage II. The VOC inventory calculation results from year 2008 to 2020 are provided in Table 1, Stage II Emissions Reductions in the Virginia Areas-Wide VOC Inventory. The results provided in Table 1 demonstrate that in 2013 there would no longer be a VOC emissions benefit from Stage II, or that the emissions benefit is negative, and Virginia removed the Stage II requirement from its regulations on January 1, 2014. VADEQ also provided additional data and analyses demonstrating that Stage II has very little impact on VOC emissions in the Virginia Areas and that modeling indicates that the formation of ozone in the Area is much more dependent on NO_X emissions than VOC emissions. EPA finds removal of Stage II from the attainment and maintenance plans will not increase emissions of VOC or increase ozone. EPA also finds removal will not interfere with attainment, maintenance, or RFP for the NAAQS, nor interfere with any other CAA requirement. The SIP revision also addresses CAA section 184(b)(2) comparability requirements. A detailed summary of EPA's review and rationale for proposing to approve these SIP revisions including analysis of CAA sections 110(l) and 184(b)(2) may be found in the Technical Support Document (TSD) prepared in support of this rulemaking action and is available on line at http://www.regulations.gov, Docket number EPA-R03-OAR-2014-0422.

Table 1—Stage II Emissions Reductions in the Virginia Areas-Wide VOC Inventory

Year	Emissions reductions (tons per day VOC)
2008	0.58
2009	0.46
2010	0.31
2011	0.19
2012	0.08
2013	−0.01
2014	−0.07
2015	−0.13
2016	−0.17
2017	−0.20
2018	−0.22
2020	−0.24

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

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.

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 § 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts. . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.” Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its 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.

IV. Final Action

EPA is approving the revisions submitted by the Commonwealth of Virginia to remove Stage II from the attainment plans for the Northern Virginia Areas and maintenance plan for the Fredericksburg Area. EPA is approving these revisions because it was demonstrated that the removal of the Stage II requirement on January 1, 2014 will not cause any emissions increases that could interfere with the Virginia Areas' attainment or maintenance of the 1990 1-Hour and/or 1997 8-Hour Ozone NAAQS or any other applicable CAA requirement. EPA is also approving these revisions because they meet the requirements of the comparability clause in CAA section 184(b)(2). EPA is publishing this rule without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revisions if adverse comments are filed. This rule will be effective on July 27, 2015 without further notice unless EPA receives adverse comment by June 25, 2015. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

V. 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 Order 12866 (58 FR 51735, October 4, 1993);
• 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 (Public Law 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).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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 July 27, 2015. 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking action.

This action approving the removal of Stage II from the Virginia Areas' attainment and maintenance plans 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
• Volatile organic compounds

Dated: May 7, 2015.

William C. Early,

Acting Regional Administrator, Region III.

40 CFR part 52 is amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart VV—Virginia

2. In § 52.2420, the table in paragraph (e) is amended by revising the entries for “1-Hour Ozone Modeled Demonstration of Attainment and Attainment Plan,” “8-Hour Ozone Maintenance Plan for the Fredericksburg Area,” and “8-hour Ozone Modeled Demonstration of Attainment and Attainment Plan for the 1997 Ozone National Ambient Air Quality Standards” to read as follows:

§ 52.2420

Identification of plan.

* * * * *

(e) * * *

EPA-Approved Non-Regulatory and Quasi-Regulatory Material

Name of non-regulatory SIP revision	Applicable geographic area	State submittal date	EPA approval date	Additional explanation
*         *         *         *         *         *         *
1-Hour Ozone Modeled Demonstration of Attainment and Attainment Plan	Washington 1-hour ozone nonattainment area	8/19/03 2/25/04	5/16/05, 70 FR 25688	2005 motor vehicle emissions budgets of 97.4 tons per day (tpy) for VOC and 234.7 tpy of NOX.
		3/18/14	5/26/15 [Insert Federal Register Citation]	Removal of Stage II vapor recovery program. See section 52.2428.
*         *         *         *         *         *         *
8-Hour Ozone Maintenance Plan for the Fredericksburg Area	City of Fredericksburg, Spotsylvania County, and Stafford County	5/4/05 9/26/11	12/23/05, 70 FR 76165. 12/20/12, 77 FR 75386	Revised 2009 and 2015 motor vehicle emission budgets for NOX.
		3/18/14	5/26/15 [Insert Federal Register Citation]	Removal of Stage II vapor recovery program. See section 52.2428.
*         *         *         *         *         *         *
8-hour Ozone Modeled Demonstration of Attainment and Attainment Plan for the 1997 Ozone National Ambient Air Quality Standards	Washington, DC-MD-VA 1997 8-Hour Ozone Nonattainment Area	6/12/07	4/10/15, 80 FR 19206	2009 motor vehicle emissions budgets of 66.5 tons per day (tpd) for VOC and 146.1 tpd of NOX.
		3/18/14	5/26/15 [Insert Federal Register Citation]	Removal of Stage II vapor recovery program. See section 52.2428.

3. Section 52.2428, is amended by adding paragraph (l) to read as follows:

§ 52.2428

Control Strategy: Carbon monoxide and ozone.

* * * * *

(l) As of May 26, 2015, EPA approves the removal of the Stage II vapor recovery program from the attainment plans for the Virginia portion of the Washington DC-MD-VA 1990 1-hour and 1997 8-hour Ozone NAAQS Nonattainment Areas and from the maintenance plan for the Fredericksburg 1997 8-Hour Ozone Maintenance Area.