[Federal Register Volume 80, Number 136 (Thursday, July 16, 2015)]
[Rules and Regulations]
[Pages 42044-42046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-17386]
[[Page 42044]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2015-0360; FRL-9930-63-Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Revision to the Definition of Volatile Organic Compounds
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking direct
final action to approve a revision to the Commonwealth of Virginia's
State Implementation Plan (SIP). The revision adds two compounds to the
list of substances not considered to be volatile organic compounds
(VOC). EPA is approving these revisions in accordance with the
requirements of the Clean Air Act (CAA).
DATES: This rule is effective on September 14, 2015 without further
notice, unless EPA receives adverse written comment by August 17, 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-2015-0360 by one of the following methods:
A. www.regulations.gov. Follow the on-line instructions for
submitting comments.
B. Email: [email protected].
C. Mail: EPA-R03-OAR-2015-0360, Cristina Fernandez, Associate
Director, Office of Air Program Planning, Air Protection Division,
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-
2015-0360. 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: Irene Shandruk, (215) 814-2166, or by
email at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
Tropospheric ozone, commonly known as smog, is formed when VOCs and
nitrogen oxides react in the atmosphere in the presence of sunlight.
Because of the harmful health effects of ozone, EPA and state
governments limit the amount of VOCs that can be released into the
atmosphere. VOCs have different levels of reactivity, that is, some
VOCs react slowly or form less ozone, and therefore, changes in their
emissions have limited effects on local or regional ozone pollution
episodes. It has been EPA's policy that VOCs with a negligible level of
reactivity should be excluded from the regulatory definition of VOC
contained at 40 CFR 51.100(s) so as to focus control efforts on
compounds that do significantly increase ozone concentrations. This is
accomplished by adding the substance to a list of compounds not
considered to be VOCs, and thus, excluded from the definition of VOC.
EPA believes that exempting such compounds creates an incentive for
industry to use negligibly reactive compounds in place of more highly
reactive compounds that are regulated as VOCs. On August 28, 2013 (78
FR 53029) and October 22, 2013 (78 FR 62451), EPA revised the
definition of VOC contained in 40 CFR 51.100 to exclude two substances
from the definition of VOC. The compounds excluded from the definition
of VOC are trans 1-chloro-3,3,3-trifluoroprop-1-ene (also known as
Solstice\TM\ 1233zd(E)) and 2,3,3,3-tetrafluoropropene (also known as
HFO-1234yf).
II. Summary of SIP Revision
On May 7, 2015, the Commonwealth of Virginia submitted a formal
revision to its SIP which consists of adding two additional compounds
to the list of substances that are not considered VOCs found at 9VAC5-
10-20. These compounds are trans 1-chloro-3,3,3-trifluoroprop-1-ene
(also known as Solstice\TM\ 1233zd(E)) and 2,3,3,3-tetrafluoropropene
(also known as HFO-1234yf). The May 7, 2015 SIP revision will allow the
Virginia SIP to mirror the Federal definition of VOC. EPA believes that
by excluding these negligibly reactive compounds from the definition of
VOC an incentive is created for industry to use negligibly reactive
compounds in place of more highly reactive compounds; therefore, the
air quality in Virginia will not be negatively affected by the approval
of these SIP revisions particularly as EPA has found these compounds
negligibly reactive for ozone formation.
III. Final Action
EPA is approving the SIP revision to the definition of VOC
submitted by Virginia on May 7, 2015. 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 revision if adverse comments are filed. This rule will
be effective on September 14, 2015 without further
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notice unless EPA receives adverse comment by August 17, 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.
IV. General Information Pertaining to SIP Submittals From the
Commonwealth of Virginia
In 1995, Virginia adopted legislation that provides, subject to
certain conditions, for an environmental assessment (audit)
``privilege'' for voluntary compliance evaluations performed by a
regulated entity. The legislation further addresses the relative burden
of proof for parties either asserting the privilege or seeking
disclosure of documents for which the privilege is claimed. Virginia's
legislation also provides, subject to certain conditions, for a penalty
waiver for violations of environmental laws when a regulated entity
discovers such violations pursuant to a voluntary compliance evaluation
and voluntarily discloses such violations to the Commonwealth and takes
prompt and appropriate measures to remedy the violations. Virginia's
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and
information about the content of those documents that are the product
of a voluntary environmental assessment. The Privilege Law does not
extend to documents or information that: (1) Are generated or developed
before the commencement of a voluntary environmental assessment; (2)
are prepared independently of the assessment process; (3) demonstrate a
clear, imminent and substantial danger to the public health or
environment; or (4) are required by law.
On January 12, 1998, the Commonwealth of Virginia Office of the
Attorney General provided a legal opinion that states that the
Privilege Law, Va. Code Sec. 10.1-1198, precludes granting a privilege
to documents and information ``required by law,'' including documents
and information ``required by Federal law to maintain program
delegation, authorization or approval,'' since Virginia must ``enforce
Federally authorized environmental programs in a manner that is no less
stringent than their Federal counterparts . . .'' The opinion concludes
that ``[r]egarding Sec. 10.1-1198, therefore, documents or other
information needed for civil or criminal enforcement under one of these
programs could not be privileged because such documents and information
are essential to pursuing enforcement in a manner required by Federal
law to maintain program delegation, authorization or approval.''
Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that ``[t]o
the extent consistent with requirements imposed by Federal law,'' any
person making a voluntary disclosure of information to a state agency
regarding a violation of an environmental statute, regulation, permit,
or administrative order is granted immunity from administrative or
civil penalty. The Attorney General's January 12, 1998 opinion states
that the quoted language renders this statute inapplicable to
enforcement of any Federally authorized programs, since ``no immunity
could be afforded from administrative, civil, or criminal penalties
because granting such immunity would not be consistent with Federal
law, which is one of the criteria for immunity.''
Therefore, EPA has determined that Virginia's Privilege and
Immunity statutes will not preclude the Commonwealth from enforcing its
program consistent with the Federal requirements. In any event, because
EPA has also determined that a state audit privilege and immunity law
can affect only state enforcement and cannot have any impact on Federal
enforcement authorities, EPA may at any time invoke its authority under
the CAA, including, for example, sections 113, 167, 205, 211 or 213, to
enforce the requirements or prohibitions of the state plan,
independently of any state enforcement effort. In addition, citizen
enforcement under section 304 of the CAA is likewise unaffected by
this, or any, state audit privilege or immunity law.
V. Incorporation by Reference
In this rulemaking action, 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
definition of VOCs as described in section II of this rulemaking
action. EPA has made, and will continue to make, these documents
generally available electronically through www.regulations.gov and/or
in hard copy at the appropriate EPA office (see the ADDRESSES section
of this preamble for more information).
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 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 (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).
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
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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 September 14, 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, revising the definition of VOCs, 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, Ozone, Reporting and recordkeeping requirements, Volatile
organic compounds.
Dated: July 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
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart VV--Virginia
0
2. In Sec. 52.2420, the table in paragraph (c) is amended by adding a
new entry for ``Section 5-10-20'' immediately after the existing
entries for ``Section 5-10-20'' to read as follows:
Sec. 52.2420 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Virginia Regulations and Statutes
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Explanation
State citation Title/subject State effective EPA approval date [former SIP
date citation]
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9 VAC 5, Chapter 10 General Definitions [Part I]
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* * * * * * *
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5-10-20......................... Terms Defined...... 3/12/15 7/16/15 [Insert Definition of VOC
Federal Register is revised by
citation]. adding two
chemicals (trans 1-
chloro-3,3,3-
trifluoroprop-1-
ene and 2,3,3,3-
tetrafluoropropene
) to the list of
substances not
considered to be
VOCs.
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[FR Doc. 2015-17386 Filed 7-15-15; 8:45 am]
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