Federal Register / Vol. 83, No. 174 / Friday, September 7, 2018 / Rules and Regulations 45351 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by November 6, 2018. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Reporting and 

recordkeeping requirements, Sulfur 

oxides, Volatile organic compounds. 

Dated: August 8, 2018. 

Cathy Stepp, 

Regional Administrator, Region 5. 

40 CFR part 52 is amended as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

■ 2. Section 52.2570 is amended by 

revising paragraph (c)(113)(i)(D), and by 

adding paragraph (c)(137) to read as 

follows: 

§ 52.2570 Identification of plan. 

* * * * * 

(c) * * * 

(113) * * * 

(i) * * * 

(D) NR 400.02(73m) and (131m), 

406.02(1) and (2), 406.04(2m), NR 

406.11(1)(g)(1), 406.11(3), 406.16, 

406.17, 406.18, 407.02(3m), 407.105, 

407.107, 407.14 Note, 407.14(4)(c), 

407.15(8)(a) and 410.03(1)(a)(6) and (7) 

as created and published in the 

(Wisconsin) Register, August 2005, No. 

596, effective September 1, 2005. 

Sections NR 406.16(2)(d) and NR 

406.17(3)(e) were repealed in 2015 and 

are removed without replacement; see 

paragraph (c)(137) of this section. 

* * * * * 

(137) On May 16, 2017, the Wisconsin 

Department of Natural Resources 

submitted a request to revise 

Wisconsin’s air permitting rules NR 

400.02(136m), NR 406.04(1)(w), NR 

406.08(1), NR 406.10 and NR 406.11(1). 

These revisions replace the existing 

definition of ‘‘emergency electric 

generator’’ with the Federal definition of 

‘‘restricted internal combustion engine’’, 

amends procedures for revoking 

construction permits and include minor 

language changes and other 

administrative updates. Wisconsin has 

also requested to remove from the SIP 

NR 406.16(2)(d) and NR 406.17(3)(e), 

provisions affecting eligibility of 

coverage under general and registration 

construction permits, previously 

approved in paragraph (c)(113) of this 

section. This action ensures consistency 

with Wisconsin Environmental 

Protection Act (WEPA) laws. 

(i) Incorporation by reference. 

(A) Wisconsin Administrative Code, 

NR 400.02(136m) as published in the 

Wisconsin Administrative Register 

November 2015 No. 719, effective 

December 1, 2015. 

(B) Wisconsin Administrative Code, 

NR 406.04(1)(w), NR 406.08(1), NR 

406.10 and NR 406.11(1) as published in 

the Wisconsin Administrative Register 

November 2015 No. 719, effective 

December 1, 2015. 

[FR Doc. 2018–19161 Filed 9–6–18; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2017–0399; FRL–9983– 

33—Region 3] 

Approval and Promulgation of Air 

Quality Implementation Plans; Virginia; 

Nonattainment New Source Review 

Requirements for the 2008 8-Hour 

Ozone Standard 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving a revision to 

the Commonwealth of Virginia’s state 

implementation plan (SIP). The revision 

is in response to EPA’s February 3, 2017 

Findings of Failure to Submit for 

various requirements relating to the 

2008 8-hour ozone national ambient air 

quality standards (NAAQS). This SIP 

revision is specific to nonattainment 

new source review (NNSR) 

requirements. EPA is approving this 

revision in accordance with the 

requirements of the Clean Air Act 

(CAA). 

DATES: This final rule is effective on 

October 9, 2018. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R03–OAR–2017–0399. All 

documents in the docket are listed on 

the https://www.regulations.gov 

website. Although listed in the index, 

some information is not publicly 

available, e.g., confidential business 

information (CBI) or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available through 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: 

David Talley, (215) 814–2117, or by 

email at talley.david@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On April 4, 2018 (83 FR 14386), EPA 

published a notice of proposed 

rulemaking (NPR) for the 

Commonwealth of Virginia. In the NPR, 

EPA proposed approval of the SIP 

submitted in response to EPA’s final 

2008 8-hour ozone NAAQS Findings of 

Failure to Submit for NNSR 

requirements. See 82 FR 9158 (February 

3, 2017). Specifically, Virginia is 

certifying that its existing NNSR 

program, covering the Washington, DC 

nonattainment area (which includes 

Alexandria City, Arlington County, 

Fairfax County, Fairfax City, Falls 

Church City, Loudoun County, 

Manassas City, Manassas Park City, and 

Prince William County in Virginia) 

(hereafter, Washington, DC 

Nonattainment Area) for the 2008 8- 

hour ozone NAAQS, is at least as 

stringent as the requirements at 40 CFR 

51.165, as amended by the final rule 

entitled ‘‘Implementation of the 2008 

National Ambient Air Quality Standards 

for Ozone: State Implementation Plan 

Requirements’’ (SIP Requirements Rule), 


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1The SIP Requirements Rule addresses a range of 

nonattainment area SIP requirements for the 2008 

8-hour ozone NAAQS, including requirements 

pertaining to attainment demonstrations, reasonable 

further progress (RFP), reasonably available control 

technology, reasonably available control measures, 

major new source review, emission inventories, and 

the timing of SIP submissions and of compliance 

with emission control measures in the SIP. The rule 

also revokes the 1997 ozone NAAQS and 

establishes anti-backsliding requirements. On 

February 16, 2018, the United States Court of 

Appeals for the District of Columbia Circuit (D.C. 

Circuit) issued an opinion granting a number of 

challenges to the EPA’s SIP Requirements Rule. 

South Coast Air Quality Mgmt. Dist. v. EPA, 882 

F.3d 1138 (D.C. Cir. 2018). Specifically, as relevant 

here, the Court vacated the ‘‘redesignation 

substitute’’ provision in the implementation rule, 

which allowed states a way to satisfy antibacksliding requirements for revoked standards. 

EPA and South Coast Air Quality Management 

District filed petitions for rehearing and those 

petitions are pending before the Court. 

2EPA finalized approval of a Determination of 

Attainment (DOA) for the 2008 8-hour ozone 

NAAQS for the Washington, DC Nonattainment 

Area on November 14, 2017. This final action was 

based on complete, certified, and quality assured 

ambient air quality monitoring data for the 2013– 

2015 monitoring period. See 82 FR 52651 

(November 14, 2017). It should be noted that a DOA 

does not alleviate the need for Virginia to certify 

that their existing SIP approved NNSR program is 

as stringent as the requirements at 40 CFR 51.165, 

as NNSR applies in nonattainment areas until an 

area has been redesignated to attainment. 

3Neither Virginia’s obligation to submit the 

NNSR Certification SIP nor the requirements 

governing that submission were affected by the D.C. 

Circuit’s February 16, 2018 decision on portions of 

the SIP Requirements Rule in South Coast Air 

Quality Mgmt. Dist. v. EPA. 

4See CAA sections 172(c)(5), 173 and 182. 

5With respect to states with nonattainment areas 

subject to a finding of failure to submit NNSR SIP 

revisions, such revisions would no longer be 

required if the area were redesignated to attainment. 

The CAA’s prevention of significant deterioration 

(PSD) program requirements apply in lieu of NNSR 

after an area is redesignated to attainment. For areas 

outside the OTR, NNSR requirements do not apply 

in areas designated as attainment. 

for ozone and its precursors.1 See 80 FR 

12264 (March 6, 2015). The formal SIP 

revision was submitted by the Virginia 

Department of Environmental Quality 

(VADEQ) on behalf of the 

Commonwealth of Virginia on May 11, 

2017. 

On March 12, 2008, EPA promulgated 

a revised 8-hour ozone NAAQS of 0.075 

parts per million (ppm). See 73 FR 

16436 (March 27, 2008). Under EPA’s 

regulations at 40 CFR 50.15, the 2008 8- 

hour ozone NAAQS is attained when 

the three-year average of the annual 

fourth-highest daily maximum 8-hour 

average ambient air quality ozone 

concentration is less than or equal to 

0.075 ppm. 

Upon promulgation of a new or 

revised NAAQS, the CAA requires EPA 

to designate as nonattainment any area 

that is violating the NAAQS based on 

the three most recent years of ambient 

air quality data available at the 

conclusion of the designation process. 

The Washington, DC Nonattainment 

Area was classified as a marginal 

nonattainment area for the 2008 8-hour 

ozone NAAQS on May 21, 2012 

(effective July 20, 2012) using 2008– 

2010 ambient air quality data. See 77 FR 

30088. On March 6, 2015, EPA issued 

the final SIP Requirements Rule, which 

establishes the requirements that state, 

tribal, and local air quality management 

agencies must meet as they develop 

implementation plans for areas where 

air quality exceeds the 2008 8-hour 

ozone NAAQS. See 80 FR 12264. Areas 

that were designated as marginal ozone 

nonattainment areas were required to 

attain the 2008 8-hour ozone NAAQS no 

later than July 20, 2015, based on 2012– 

2014 monitoring data. The Washington, 

DC Nonattainment Area did not attain 

the 2008 8-hour ozone NAAQS by July 

20, 2015; however, this area did meet 

the CAA section 181(a)(5) criteria, as 

interpreted in 40 CFR 51.1107, for a 

one-year attainment date extension. See 

81 FR 26697 (May 4, 2016). Therefore, 

on April 11, 2016, the EPA 

Administrator signed a final rule 

extending the Washington, DC 

Nonattainment Area 2008 8-hour ozone 

NAAQS attainment date from July 20, 

2015 to July 20, 2016.2

Based on initial nonattainment 

designations for the 2008 8-hour ozone 

standard, as well as the March 6, 2015 

final SIP Requirements Rule, Virginia 

was required to develop a SIP revision 

addressing certain CAA requirements 

for the Washington, DC Nonattainment 

Area, and submit to EPA a NNSR 

Certification SIP or SIP revision no later 

than 36 months after the effective date 

of area designations for the 2008 8-hour 

ozone NAAQS (i.e., July 20, 2015).3 See 

80 FR 12264 (March 6, 2015). EPA is 

proposing to approve Virginia’s May 11, 

2017 NNSR Certification SIP revision. 

EPA’s analysis of how this SIP revision 

addresses the NNSR requirements for 

the 2008 8-hour ozone NAAQS is 

provided in Section II. 

II. Summary of SIP Revision and EPA 

Analysis 

This rulemaking action is specific to 

Virginia’s NNSR requirements. NNSR is 

a preconstruction review permit 

program that applies to new major 

stationary sources or major 

modifications at existing sources located 

in a nonattainment area.4 The specific 

NNSR requirements for the 2008 8-hour 

ozone NAAQS are located in 40 CFR 

51.160–165. As set forth in the SIP 

Requirements Rule, for each 

nonattainment area, a NNSR plan or 

plan revision was due no later than 36 

months after the effective date of area 

designations for the 2008 8-hour ozone 

standard (i.e., July 20, 2015).5

The minimum SIP requirements for 

NNSR permitting programs for the 2008 

8-hour ozone NAAQS are located in 40 

CFR 51.165. See 40 CFR 51.1114. These 

NNSR program requirements include 

those promulgated in the ‘‘Phase 2 

Rule’’ implementing the 1997 8-hour 

ozone NAAQS (75 FR 71018 (November 

29, 2005)) and the SIP Requirements 

Rule implementing the 2008 8-hour 

ozone NAAQS. Under the Phase 2 Rule, 

the SIP for each ozone nonattainment 

area must contain NNSR provisions 

that: Set major source thresholds for 

oxides of nitrogen (NOX) and volatile 

organic compounds (VOC) pursuant to 

40 CFR 51.165(a)(1)(iv)(A)(1)(i)–(iv) and 

(2); classify physical changes as a major 

source if the change would constitute a 

major source by itself pursuant to 40 

CFR 51.165(a)(1)(iv)(A)(3); consider any 

significant net emissions increase of 

NOX as a significant net emissions 

increase for ozone pursuant to 40 CFR 

51.165(a)(1)(v)(E); consider certain 

increases of VOC emissions in extreme 

ozone nonattainment areas as a 

significant net emissions increase and a 

major modification for ozone pursuant 

to 40 CFR 51.165(a)(1)(v)(F); set 

significant emissions rates for VOC and 

NOX as ozone precursors pursuant to 40 

CFR 51.165(a)(1)(x)(A)–(C) and (E); 

contain provisions for emissions 

reductions credits pursuant to 40 CFR 

51.165(a)(3)(ii)(C)(1)–(2); provide that 

the requirements applicable to VOC also 

apply to NOX pursuant to 40 CFR 

51.165(a)(8); and set offset ratios for 

VOC and NOX pursuant to 40 CFR 

51.165(a)(9)(i)–(iii) (renumbered as 

(a)(9)(ii)–(iv) under the SIP 

Requirements Rule for the 2008 8-hour 

ozone NAAQS). Under the SIP 

Requirements Rule for the 2008 8-hour 

ozone NAAQS, the SIP for each ozone 

nonattainment area designated 

nonattainment for the 2008 8-hour 

ozone NAAQS and designated 

nonattainment for the 1997 ozone 

NAAQS on April 6, 2015, must also 

contain NNSR provisions that include 

the anti-backsliding requirements at 40 

CFR 51.1105. See 40 CFR 51.165(a)(12). 

Virginia’s SIP-approved NNSR 

program is implemented through Article 

9, Permits for Major Stationary Sources 

and Major Modifications Locating in 

Nonattainment Areas or the Ozone 

Transport Region, in the Virginia 

Administrative Code (VAC), 9VAC5– 

80—Permits for Stationary Sources. In 

its May 11, 2017 SIP revision, Virginia 

certifies that the version of 9VAC5–80 


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Federal Register / Vol. 83, No. 174 / Friday, September 7, 2018 / Rules and Regulations 45353 

6Under the 1997 8-hour ozone NAAQS, the 

Washington, DC Area was classified as moderate 

nonattainment. 

7See 83 FR 7610. 

8See 83 FR 14388 

in the SIP is at least as stringent as the 

federal NNSR requirements for the 

Washington, DC Nonattainment Area. 

EPA last approved revisions to 

Virginia’s major NNSR SIP on August 

28, 2017. In that action, EPA approved 

revisions to Virginia’s SIP which made 

Virginia’s NNSR program consistent 

with federal requirements. Additionally, 

those revisions corrected a deficiency 

which had been grounds for limited 

approval of Virginia’s program. EPA 

found, therefore, that Virginia’s program 

met all CAA requirements and was fully 

approvable. See 82 FR 40703. 

EPA notes that neither 9VAC5–80 nor 

Virginia’s approved SIP have the 

regulatory provision for any emissions 

change of VOC in extreme 

nonattainment areas, specified in 40 

CFR 51.165(a)(1)(v)(F), because Virginia 

has never had an area designated 

extreme nonattainment for any of the 

ozone NAAQS. Nonetheless, the 

Virginia SIP is not required to have this 

requirement for VOC in extreme 

nonattainment areas until such time as 

Virginia has an extreme ozone 

nonattainment area. In Virginia’s May 

11, 2017 SIP revision, VADEQ asserted 

that anti-backsliding provisions do not 

apply to any area within Virginia, 

including the northern Virginia/ 

Metropolitan Washington, DC area, 

because Virginia submitted to EPA a 

final ‘‘redesignation substitute’’ request 

for the 1997 ozone NAAQS for the 

Washington, DC area on April 29, 2016. 

As noted, in its February 16, 2018 

decision, the South Coast Court vacated 

the provision in the implementation 

rule for the 2008 ozone NAAQS that 

created the ‘‘redesignation substitute.’’ 

The Court disagreed with EPA’s 

interpretation of the Clean Air Act that 

once a standard is revoked, the Agency 

no longer has authority to change 

designations or classifications for that 

revoked standard. The Court ruled that 

in order for 1997 ozone nonattainment 

areas to be relieved from antibacksliding requirements under the old 

revoked standard, those areas would 

need to seek, and EPA would need to 

approve, full statutory redesignations to 

attainment in compliance with CAA 

section 107(d)(3). The Court thus 

vacated the ‘‘redesignation substitute,’’ 

because it held that areas could not 

receive the benefits of a redesignation 

without meeting all of the elements in 

CAA section 107(d)(3)(E). 

Given the D.C. Circuit’s vacatur of the 

redesignation substitute mechanism in 

South Coast, EPA cannot approve 

Virginia’s redesignation substitute 

request. Therefore, until the 

Washington, DC Nonattainment Area is 

redesignated under section 107(d)(3), 

the state remains required to comply 

with the anti-backsliding provisions 

found in 40 CFR 51.165(a)(12) and 

located in 9VAC5–80 of its SIP which 

applied to NSR requirements for the 

1997 ozone NAAQS. EPA finds that the 

Virginia SIP presently includes all 

required major stationary source 

thresholds and emissions offset ratios 

for NSR purposes which were 

established for the SIP for Virginia’s 

1997 8-hour ozone NAAQS 

nonattainment designation. See 82 FR 

40703 (finding Virginia’s NNSR program 

consistent with all federal requirements 

in August 2017). 

Thus, EPA finds that Virginia’s SIP 

includes relevant and required antibacksliding requirements. Virginia has 

not changed these major stationary 

source threshold and offset provisions 

in 9VAC5–80–2010 C, and furthermore, 

they remain in Virginia’s federallyapproved SIP unless and until EPA 

approves a full redesignation request in 

accordance with CAA section 107.6 EPA 

expects that VADEQ will continue to 

implement its NNSR program 

consistently with its approved SIP for 

major stationary source thresholds and 

emission offset ratios. 

EPA has not amended the SIP 

provisions related to 9VAC5–80 since 

the August 28, 2017 rulemaking where 

EPA last approved Virginia’s NNSR 

provisions as meeting CAA 

requirements for a NNSR program. The 

SIP-approved version of 9VAC5–80 

covers Virginia’s portion of the 

Washington, DC Nonattainment Area 

and remains adequate to meet all 

applicable NNSR requirements for the 

2008 8-hour ozone NAAQS in 40 CFR 

51.165, the Phase 2 Rule, and the SIP 

Requirements Rule. 

III. Public Comments and EPA 

Response 

EPA received a total of sixteen sets of 

comments on the April 4, 2018 NPR. 

Fifteen of those did not concern any of 

the specific issues raised in the NPR, 

nor did they address EPA’s rationale for 

the proposed approval of VADEQ’s 

submittal. Therefore, EPA is not 

responding to those comments. EPA did 

receive one set of relevant comments. 

Those comments and EPA’s responses 

are discussed in this Section. All of the 

comments received are included in the 

docket for this rulemaking action. 

Comment 1: The commenter asserts 

that EPA’s proposed approval failed to 

adequately address whether Virginia’s 

SIP ensures that the CAA’s antibacksliding requirements are met. In 

support of this claim, the commenter 

first points to Virginia’s May 11, 2017 

submittal in which VADEQ claims that 

anti-backsliding provisions don’t apply 

because Virginia submitted a 

redesignation substitute request on 

April 26, 2016, and asserts that 

redesignation substitutes were ruled 

unlawful by the D.C. Circuit in the 

South Coast decision. Second, the 

commenter takes issue with EPA’s 

assertion in the NPR that Virginia’s 

NNSR SIP contains all of the 

requirements necessary to implement 

the 2008 8-hour ozone NAAQS, citing 

EPA’s failure to address a February 18, 

2018 approval action related to the 

implementation of the 2008 ozone 

NAAQS and the revocation of the 1997 

ozone NAAQS.7 The commenter asserts 

that until EPA addresses how ‘‘the SIP 

as a whole,’’ (including the revisions 

from EPA’s February 18, 2018 approval) 

meets the anti-backsliding requirements, 

approval of Virginia’s May 17, 2017 

submittal would be arbitrary and 

unlawful. 

EPA Response 1: The anti-backsliding 

requirements at both 40 CFR 

51.165(a)(12) and 51.1105 provide that 

the minimum SIP elements for NNSR 

outlined at 40 CFR 51.165 continue to 

apply in areas designated as 

nonattainment for the 1997 ozone 

NAAQS that had not been redesignated 

to attainment by EPA prior to the April 

6, 2015 revocation date of the 1997 

NAAQS. EPA agrees with the 

commenter that VADEQ’s assertion that 

the April 26, 2016 redesignation 

substitute request relieves Virginia of 

the CAA’s anti-backsliding requirements 

is not correct, first because EPA never 

acted on that request and second 

because even if the Agency had 

approved such request, the South Coast 

Court held that redesignation substitutes 

cannot relieve nonattainment areas of 

anti-backsliding requirements. EPA 

clearly and unambiguously stated in the 

NPR (and restated in Section II of this 

document): ‘‘Virginia remains required 

to comply with the anti-backsliding 

provisions found in 40 CFR 

51.165(a)(12) and located in 9VAC5–80 

of its SIP which applied to NSR 

requirements for the 1997 ozone 

NAAQS.’’ 8 EPA further stated that 

Virginia is expected to implement its 

NNSR program consistent with its 

approved SIP (which does contain the 

CAA’s anti-backsliding requirements) 

unless and until EPA promulgates a full 

redesignation of the DC Area for the 


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9 9VAC5–80–2010C in pertinent part reads as 

follows: ‘ ‘‘Regulated NSR Pollutant’ means any of 

the following: a. Nitrogen oxides or any volatile 

organic compound. . . . c. . . . . Precursors 

identified for purposes of this article shall be the 

following: (1) (1) Volatile organic compounds and 

nitrogen oxides are precursors to ozone in all ozone 

nonattainment areas.’’ 

2008 ozone NAAQS in accordance with 

CAA section 107(d)(3). 

With respect to the commenter’s 

assertion that EPA must evaluate the SIP 

as a whole and in light of the February 

18, 2018 approval action, in order to 

grant approval to Virginia’s May 17, 

2017 submittal, EPA disagrees. EPA 

clearly stated in the NPR, and reiterates 

in this action, this action is specific to 

the NNSR program requirements of 40 

CFR 51.165, which are codified by 

Virginia under Article 9 of 9VAC5–80. 

EPA’s February 18, 2018 approval 

action did not revise or address any of 

the NNSR requirements in 9VAC5–80 

and is therefore irrelevant to this action. 

EPA is not obligated, when reviewing 

each SIP submission, to re-review all 

prior SIP submissions already acted on. 

Such an interpretation of the CAA 

would subject the Agency to neverending review of the state’s 

implementation plan. 

The February 18, 2018 action 

approved revisions to 9VAC5–20–204, 

9VAC5–30–55, 9VAC5–151–20, and 

9VAC5–160–30. The amendment to 

9VAC5–30–55 added text stating that 

the primary and secondary ambient air 

quality standard of 0.08 ppm shall no 

longer apply after April 6, 2015, 

consistent with EPA’s revocation of the 

1997 standard. The revisions to 9VAC5– 

151–20 and 9VAC5–160–30 were 

related to transportation conformity and 

general conformity, neither of which are 

germane to this action. Subdivision 

(A)(2) of 9VAC5–20–204 defines and 

classifies the nonattainment area for the 

1997 ozone standard. EPA’s February 

18, 2018 final rulemaking action 

approved a revision to 9VAC5–20–204 

which provided that subdivision (A)(2) 

would no longer be effective after April 

6, 2015. This is appropriate given the 

revocation of the 1997 standard. It is 

important to note that subdivision (A)(2) 

was not removed. Pursuant to 9VAC5– 

80–2000(B), the NNSR requirements of 

Article 9 apply to ‘‘. . . nonattainment 

areas designated in 9VAC5–20–204 

. . .’’ This is the mechanism through 

which Virginia’s NNSR requirements 

are applied to the various 

nonattainment areas in the 

Commonwealth. While the 

nonattainment area status for the 1997 

ozone NAAQS is no longer active or 

‘‘effective’’ due to the fact that that 

standard has been revoked, the only 

‘‘designation’’ and ‘‘classification’’ that 

applies to the Washington DC 

Nonattainment Area for purposes of the 

revoked 1997 ozone NAAQS, and 

specifically for purposes of establishing 

the NNSR preconstruction permitting 

requirements of Article 9, remain on the 

books at 9VAC5–20–204. Therefore, 

even if the February 18, 2018 action 

might require amendment in light of 

South Coast, such a revision would not 

impact the effectiveness of EPA’s final 

action approving Virginia’s NNSR SIP. 

Comment 2: The commenter asserts 

that EPA’s proposed approval fails to 

ensure compliance with certain other 

NNSR requirements in 40 CFR 

51.165(a)(1)(v)(E), specifically the 

requirement that any significant net 

emissions increase of nitrogen oxides 

(NOX) be considered significant for 

ozone. The commenter points to part b. 

of the definition of ‘‘Major 

modification’’ in 9VAC5–80–2010 

which states: ‘‘[a]ny significant 

emissions increase from any emissions 

units or net emissions increase at a 

source that is considered significant for 

volatile organic compounds shall be 

considered significant for ozone,’’ and 

claims that the lack of similar language 

pertaining to NOX creates ambiguity as 

to whether the requirements of 40 CFR 

51.165(a)(1)(v)(E) are met. 

EPA Response 2: EPA disagrees that 

there is any ambiguity in Virginia’s 

NNSR SIP with regard to the potential 

for a significant net increase of NOX to 

be considered significant for ozone. The 

language identified by the commenter in 

part b. of the definition of ‘‘Major 

modification’’ in 9VAC5–80–2010 that 

is specific to volatile organic 

compounds is simply a recitation of 

nearly identical language in 40 CFR 

51.165(a)(1)(v)(B) which is also specific 

to volatile organic compounds and has 

no implications with regard to NOX. 

Virginia’s May 17, 2017 submittal 

identified the provisions of the SIP 

which satisfy the requirement of 40 CFR 

51.165(a)(1)(v)(E). First, under the 

definition of ‘‘regulated NSR pollutant’’ 

at 9VAC5–80–2010C, subdivisions a. 

and c.(1) include NOX and make clear 

that NOX is regulated as a precursor to 

ozone.9 Additionally, subdivisions a. 

and c. of the definition of ‘‘Significant’’ 

contain the appropriate significance 

thresholds for NOX (40 tons per year 

(tpy), or 25 tpy in areas designated as 

serious or severe nonattainment). 

Finally, part a. of the definition of 

‘‘Major modification’’ in 9VAC5–80– 

2010 states that a major modification 

means ‘‘any physical change in or 

change in the method of operation of a 

major stationary source that would 

result in (i) a significant emissions 

increase of a regulated NSR pollutant; 

and (ii) a significant net emissions 

increase of that pollutant from the 

source.’’ (emphasis added) Because NOX

is clearly included in the definition of 

a ‘‘Regulated NSR Pollutant,’’ a 

significant emissions increase and a 

significant net emissions increase of 

NOX would meet the definition of 

‘‘Major Modification,’’ thus satisfying 

the requirement of 40 CFR 

51.165(a)(1)(v)(E). 

IV. Final Action 

EPA is approving Virginia’s May 17, 

2017 SIP revision addressing the NNSR 

requirements for the 2008 ozone 

NAAQS for the Washington DC 

Nonattainment Area. EPA has 

concluded that the State’s submission 

fulfills the 40 CFR 51.1114 revision 

requirement, meets the requirements of 

CAA sections 110 and 172 and the 

minimum SIP requirements of 40 CFR 

51.165, as well as its obligations under 

EPA’s February 3, 2017 Findings of 

Failure to Submit. See 82 FR 9158. 

V. General Information Pertaining to 

SIP Submittals From the 

Commonwealth of Virginia 

In 1995, Virginia adopted legislation 

that provides, subject to certain 

conditions, for an environmental 

assessment (audit) ‘‘privilege’’ for 

voluntary compliance evaluations 

performed by a regulated entity. The 

legislation further addresses the relative 

burden of proof for parties either 

asserting the privilege or seeking 

disclosure of documents for which the 

privilege is claimed. Virginia’s 

legislation also provides, subject to 

certain conditions, for a penalty waiver 

for violations of environmental laws 

when a regulated entity discovers such 

violations pursuant to a voluntary 

compliance evaluation and voluntarily 

discloses such violations to the 

Commonwealth and takes prompt and 

appropriate measures to remedy the 

violations. Virginia’s Voluntary 

Environmental Assessment Privilege 

Law, Va. Code Sec. 10.1–1198, provides 

a privilege that protects from disclosure 

documents and information about the 

content of those documents that are the 

product of a voluntary environmental 

assessment. The Privilege Law does not 

extend to documents or information 

that: (1) Are generated or developed 

before the commencement of a 

voluntary environmental assessment; (2) 

are prepared independently of the 

assessment process; (3) demonstrate a 

clear, imminent and substantial danger 

to the public health or environment; or 

(4) are required by law. 


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Federal Register / Vol. 83, No. 174 / Friday, September 7, 2018 / Rules and Regulations 45355 

On January 12, 1998, the 

Commonwealth of Virginia Office of the 

Attorney General provided a legal 

opinion that states that the Privilege 

law, Va. Code Sec. 10.1–1198, precludes 

granting a privilege to documents and 

information ‘‘required by law,’’ 

including documents and information 

‘‘required by federal law to maintain 

program delegation, authorization or 

approval,’’ since Virginia must ‘‘enforce 

federally authorized environmental 

programs in a manner that is no less 

stringent than their federal 

counterparts. . . .’’ The opinion 

concludes that ‘‘[r]egarding § 10.1–1198, 

therefore, documents or other 

information needed for civil or criminal 

enforcement under one of these 

programs could not be privileged 

because such documents and 

information are essential to pursuing 

enforcement in a manner required by 

federal law to maintain program 

delegation, authorization or approval.’’ 

Virginia’s Immunity law, Va. Code 

Sec. 10.1–1199, provides that ‘‘[t]o the 

extent consistent with requirements 

imposed by federal law,’’ any person 

making a voluntary disclosure of 

information to a state agency regarding 

a violation of an environmental statute, 

regulation, permit, or administrative 

order is granted immunity from 

administrative or civil penalty. The 

Attorney General’s January 12, 1998 

opinion states that the quoted language 

renders this statute inapplicable to 

enforcement of any federally authorized 

programs, since ‘‘no immunity could be 

afforded from administrative, civil, or 

criminal penalties because granting 

such immunity would not be consistent 

with federal law, which is one of the 

criteria for immunity.’’ 

Therefore, EPA has determined that 

Virginia’s Privilege and Immunity 

statutes will not preclude the 

Commonwealth from enforcing its NSR 

program consistent with the federal 

requirements. In any event, because 

EPA has also determined that a state 

audit privilege and immunity law can 

affect only state enforcement and cannot 

have any impact on federal enforcement 

authorities, EPA may at any time invoke 

its authority under the CAA, including, 

for example, sections 113, 167, 205, 211 

or 213, to enforce the requirements or 

prohibitions of the state plan, 

independently of any state enforcement 

effort. In addition, citizen enforcement 

under section 304 of the CAA is 

likewise unaffected by this, or any, state 

audit privilege or immunity law. 

VI. Statutory and Executive Order 

Reviews 

A. General Requirements 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011); 

• is not an Executive Order 13771 (82 

FR 9339, February 2, 2017) regulatory 

action because SIP approvals are 

exempted under Executive Order 12866. 

• does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• does not have federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

The SIP is not approved to apply on 

any Indian reservation land as defined 

in 18 U.S.C. 1151 or in any other area 

where EPA or an Indian tribe has 

demonstrated that a tribe has 

jurisdiction. In those areas of Indian 

country, the rule does not have tribal 

implications and will not impose 

substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

B. Submission to Congress and the 

Comptroller General 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

C. Petitions for Judicial Review 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by November 6, 2018. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action 

pertaining to Virginia’s NNSR program 

and the 2008 ozone NAAQS may not be 

challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Nitrogen dioxide, Ozone, 

Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Dated: August 27, 2018. 

Cecil Rodrigues, 

Acting Regional Administrator, Region III. 

40 CFR part 52 is amended as follows: 


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45356 Federal Register / Vol. 83, No. 174 / Friday, September 7, 2018 / Rules and Regulations 

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. Amend § 52.2420, paragraph (e)(1) 

table by adding an entry entitled ‘‘2008 

8-Hour Ozone NAAQS Nonattainment 

New Source Review Requirements’’ at 

the end of the table to read as follows: 

§ 52.2420 Identification of plan. 

* * * * * 

(e) * * * 

(1) * * * 

Name of 

non-regulatory 

SIP revision 

Applicable geographic area 

State 

submittal 

date 

EPA approval date Additional 

explanation 

*******

2008 8-Hour Ozone 

NAAQS Nonattainment New 

Source Review 

Requirements.

Virginia portion of the Washington, DC-MD-VA nonattainment area for the 2008 ozone NAAQS (i.e., Arlington 

County, Fairfax County, Loudoun County, Prince William 

County, Alexandria City, Fairfax City, Falls Church City, 

Manassas City, and Manassas Park City) as well as the 

portions of Virginia included in the Ozone Transport Region (OTR) (i.e., Arlington County, Fairfax County, 

Loudoun County, Prince William County, Stafford County, 

Alexandria City, Fairfax City, Falls Church City, Manassas 

City, and Manassas Park City).

5/17/17 9/7/17, [Insert Federal Register citation].

* * * * * 

[FR Doc. 2018–19364 Filed 9–6–18; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R01–OAR–2017–0442; FRL–9982– 

99—Region 1] 

Air Plan Approval; New Hampshire; 

Single Source Orders and Revisions to 

Definitions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving State 

Implementation Plan (SIP) revisions 

submitted by the State of New 

Hampshire. The revisions incorporate a 

single source order into the New 

Hampshire SIP, remove a previouslyapproved order from the SIP, and 

approve various definitions used within 

New Hampshire’s air pollution control 

regulations. This action is being taken in 

accordance with the Clean Air Act. 

DATES: This rule is effective on October 

9, 2018. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R01–OAR– 

2017–0442. All documents in the docket 

are listed on the https://

www.regulations.gov website. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available at https://

www.regulations.gov or at the U.S. 

Environmental Protection Agency, EPA 

Region 1 Regional Office, Office of 

Ecosystem Protection, Air Quality 

Planning Unit, 5 Post Office Square, 

Suite 100, Boston, MA. EPA requests 

that if at all possible, you contact the 

contact listed in the FOR FURTHER

INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 a.m. to 

4:30 p.m., excluding legal holidays. 

FOR FURTHER INFORMATION CONTACT: Bob 

McConnell, Environmental Engineer, 

Air Quality Planning Unit, Air Programs 

Branch (Mail Code OEP05–02), U.S. 

Environmental Protection Agency, 

Region 1, 5 Post Office Square, Suite 

100, Boston, Massachusetts, 02109– 

3912; (617) 918–1046; 

mcconnell.robert@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. 

Table of Contents 

I. Background and Purpose 

II. Final Action 

III. Incorporation by Reference 

IV. Statutory and Executive Order Reviews 

I. Background and Purpose 

On July 6, 2018 (83 FR 31513), EPA 

published a Notice of Proposed 

Rulemaking (NPRM) for the State of 

New Hampshire. The NPRM proposed 

approval of revisions to New 

Hampshire’s SIP consisting of an order 

establishing reasonably available control 

technology (RACT) requirements for the 

Diacom Corporation, removal from the 

SIP of a previously-approved RACT 

order for the Kalwall Corporation, and 

a request to revise a few definitions 

used within the State’s air pollution 

control regulations. Other specific 

requirements of New Hampshire’s 

RACT orders and revised definitions 

and the rationale for EPA’s proposed 

action are explained in the NPRM and 

will not be restated here. 

We received a number of anonymous 

comments that address subjects outside 

the scope of our proposed action, do not 

explain (or provide a legal basis for) 

how the proposed action should differ 

in any way, and make no specific 

mention of the substantive aspects of 

the proposed action. Consequently, 

these comments are not germane to this 

rulemaking and require no further 

response. 

II. Final Action 

EPA is approving an order 

establishing RACT for the Diacom 

Corporation, removal from the SIP of a 

previously-approved RACT order for the 

Kalwall Corporation, and a revision to 

eleven definitions used within the 

State’s air pollution control regulations 

as revisions to the New Hampshire SIP. 

III. Incorporation by Reference 

In this rule, the EPA is finalizing 

regulatory text that includes 

incorporation by reference. In 

accordance with requirements of 1 CFR 

51.5, the EPA is finalizing the 

incorporation by reference of revisions 

located within New Hampshire’s Env-A, 

Rules Governing the Control of Air 


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