Approval and Promulgation of Air Quality Implementation Plans; Virginia; Major New Source Review for Nonattainment Areas, 62893-62897 [E8-25019]

Download as PDF Federal Register / Vol. 73, No. 205 / Wednesday, October 22, 2008 / Rules and Regulations • 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 Clean Air Act; 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. ebenthall on PROD1PC60 with RULES 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). VerDate Aug<31>2005 15:16 Oct 21, 2008 Jkt 217001 C. Petitions for Judicial Review Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 22, 2008. 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 converting 25 PA Code Chapters 129.91 through 129.95 to full approval as they apply throughout the remainder of the Commonwealth 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: October 9, 2008. W.T. Wisniewski, Acting Regional Administrator, Region III. ■ 40 CFR part 52 is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: ■ Authority: 42 U.S.C. 7401 et seq. Subpart NN—Pennsylvania § 52.2023 [Amended] 2. In § 52.2023, paragraph (k) is removed and reserved. ■ 3. Section 52.2027 is amended by adding paragraph (c) to read as follows: ■ § 52.2027 Approval Status of Pennsylvania’s Generic NOX and VOC RACT Rules. * * * * * (c) Effective November 21, 2008, EPA removes the limited nature of its approval of 25 PA Code of Regulations, Chapter 129.91 through 129.95 as those regulations apply to the following areas: Adams, Bedford, Berks, Blair, Bradford, Cambria, Cameron, Carbon, Centre, Clarion, Clearfield, Clinton, Columbia, Crawford, Cumberland, Dauphin, Elk, Erie, Forest, Franklin, Fulton, Greene, Huntington, Indiana, Jefferson, Juniata, Lackawanna, Lancaster, Lawrence, Lebanon, Lehigh, Luzerne, Lycoming, McKean, Mercer, Mifflin, Monroe, Montour, Northampton, Northumberland, Perry, Pike, Potter, Schuylkill, Snyder, Somerset, Sullivan, Susquehanna, Tioga, Union, Venango, PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 62893 Warren, Wayne, Wyoming, and York Counties. [FR Doc. E8–25162 Filed 10–21–08; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R03–OAR–2007–0522; FRL–8731–8] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Major New Source Review for Nonattainment Areas Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: SUMMARY: EPA is granting limited approval of a State Implementation Plan (SIP) revision submitted by the Commonwealth of Virginia. This revision action establishes the limited approval of a State Implementation Plan (SIP) revision submitted by the Commonwealth of Virginia on February 12, 2007. The intended effect of this action is to grant limited approval of the September 1, 2006 regulatory amendments to Virginia’s existing new source review permit program for owners of sources located or locating in new source review nonattainment areas. This action is also providing full approval of a related SIP revision submitted by the Commonwealth on December 16, 2003, pertaining to amendments made to Virginia’s existing nonattainment new source review permit program at that time. This action is being taken under the Clean Air Act (CAA or the Act). DATES: Effective Date: This final rule is effective on November 21, 2008. ADDRESSES: EPA has established a docket for this action under Docket ID Number EPA–R03–OAR–2007–0522. All documents in the docket are listed in the https://www.regulations.gov Web site. Although listed in the electronic docket, some information is not publicly available, i.e., 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 either electronically through https://www.regulations.gov or in hard copy for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 E:\FR\FM\22OCR1.SGM 22OCR1 62894 Federal Register / Vol. 73, No. 205 / Wednesday, October 22, 2008 / Rules and Regulations 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: Sharon McCauley, (215) 814–3376, or by e-mail at mccauley.sharon@epa.gov. SUPPLEMENTARY INFORMATION: I. Background On June 27, 2008 (73 FR 36477), EPA published a notice of proposed rulemaking (NPR) proposing limited approval of amendments to Virginia’s existing new source review permit program for owners of sources located or locating in nonattainment new source review (NNSR) areas, as submitted to EPA as revisions to the Virginia SIP on February 12, 2007 and approval of certain other amendments to Virginia regulations submitted to EPA on December 16, 2003. The February 12, 2007 SIP revision submission consisted of amendments to Legislative Rules 9 VAC 5 Chapter 50, Article 4—Stationary Sources and 9 VAC 5 Chapter 80, Article 9—Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution which Cause or Contribute to Nonattainment. These rules were adopted by the Commonwealth of Virginia State Air Pollution Control Board on June 21, 2006 and became effective September 1, 2006. The December 16, 2003 SIP revision submission consisted of additional amendments to Legislative Rule 9 VAC Chapter 80, Article 9—Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution which Cause or Contribute to Nonattainment. In this action, EPA is granting limited approval of the February 12, 2007 amendments to Chapter 50, Article 4 and Chapter 80, Article 9, as well as full approval of the December 16, 2003 amendments to Chapter 80, Article 9. Virginia also submitted changes to 9 VAC Chapter 80, Article 6—Permits for New and Modified Stationary Sources as part of the February 12, 2007 SIP revision. However, as stated in the NPR, EPA is not taking any action on Chapter 80, Article 6 at this time. ebenthall on PROD1PC60 with RULES II. Summary of SIP Revision Why is Virginia changing its NSR program? In its December 2002 regulatory action, EPA changed many aspects of the regulations governing the PSD and nonattainment NSR programs, collectively referred to as ‘‘NSR’’. Virginia accepted the conceptual VerDate Aug<31>2005 15:16 Oct 21, 2008 Jkt 217001 framework of EPA’s NSR reform revisions but tailored the program to their State-specific objectives. Virginia’s regulations differ in some respects from EPA’s regulations. However, these differences are not significant. EPA has concluded that Virginia’s regulations conform to the minimum program elements in 40 CFR 51.165 despite some variations in their rules from the federal program. Notable variations were described in the proposal action and will not be restated here. III. Limited Approval Why is EPA granting only ‘‘limited approval’’ of Virginia’s NSR regulations, effective September 1, 2006 for Nonattainment NSR areas? Virginia’s regulation 9 VAC 5–80– 2010 added a new definition for ‘‘baseline actual emissions’’ to reflect changes to the NSR program found in the 2002 Federal NSR Reform rule. Virginia’s definition for ‘‘baseline actual emissions’’ varies from the Federal definition at 40 CFR 51.166(b)(47) in two ways. First, for both electric generating units (EGUs) and non-EGUs, Virginia’s rule allows the use of different baselines for different pollutants if the owner can demonstrate to the satisfaction of the State Air Pollution Control Board (Board) that a different baseline period for a different pollutant(s) is more appropriate due to extenuating circumstances. This is acceptable to EPA. However, for non-EGUs, the 24-month baseline period must occur within the five-year period preceding the date the owner begins actual construction or the permit application is deemed complete, whichever is earlier, unless the Board allows a different time period that it deems is more representative of normal source operations. Allowing a more representative period by the Board is acceptable, however, the Commonwealth’s regulations could be interpreted to allow this period to be established beyond the 10-year time period allowed in the Federal NSR Reform rule. As described in our June 27 proposed rule the Virginia regulations meet the general Federal criteria for expanding the lookback period beyond the old requirement of the most recent 24month period, and in this respect are consistent with Federal requirements. EPA is granting limited approval because the language of the regulation does not limit the look-back period to the Federally mandated 10 years. Virginia has represented to EPA that the regulation was not intended to allow sources to extend the look-back period PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 beyond 10 years. EPA would look unfavorably upon any use of discretion by Virginia that would allow for baselines that exceed a 10-year lookback period. EPA expects Virginia to correct the definition at 9 VAC 5–80–2010 by limiting the discretionary lookback period to 10 years. When Virginia makes this amendment, they may submit the revised regulation for consideration for full approval of the Nonattainment NSR program. Despite the fact that the Virginia nonattainment new source review regulations may literally be construed to allow for a source to look beyond the 10 years prescribed by the Federal regulations, the Virginia regulations nevertheless will strengthen the Virginia SIP. 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 (1) that are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that 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,’’ E:\FR\FM\22OCR1.SGM 22OCR1 ebenthall on PROD1PC60 with RULES Federal Register / Vol. 73, No. 205 / Wednesday, October 22, 2008 / Rules and Regulations 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 Clean Air Act is likewise unaffected by this, or any, state audit privilege or immunity law. Other specific requirements of this SIP revision and the rationale for EPA’s proposed action are explained in the NPR and will not be restated here. No public comments were received on the NPR. V. Final Action EPA has determined that those regulatory amendments to the nonattainment NSR program at Chapter VerDate Aug<31>2005 15:16 Oct 21, 2008 Jkt 217001 50, Article 4 and Chapter 80, Article 9 that were submitted on February 12, 2007 are being granted limited approval as noted in Section III above. EPA has also determined that the regulatory amendments to the nonattainment NSR permit program at Chapter 80, Article 9, as submitted on December 16, 2003 are fully approvable. EPA has determined that these regulatory revisions meet the minimum requirements of 40 CFR 51.165 and the Clean Air Act. VI. Statutory and Executive Order Reviews A. General Requirements Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a ‘‘significant regulatory action’’ and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, ‘‘Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use’’ (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of PO 00000 Frm 00045 Fmt 4700 Sfmt 4700 62895 power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard. In reviewing SIP submissions, EPA’s role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). 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 rule 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. This rule 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 Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 22, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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 granting limited approval of the Virginia nonattainment new source review program for sources locating or located in nonattainment areas may not be challenged later in E:\FR\FM\22OCR1.SGM 22OCR1 62896 Federal Register / Vol. 73, No. 205 / Wednesday, October 22, 2008 / Rules and Regulations proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Dated: October 9, 2008. William T. Wisniewski, Acting Regional Administrator, Region III. 40 CFR part 52 is amended as follows: ■ Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. PART 52—[AMENDED] 1. The authority citation for 40 CFR 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 (c) is amended by: ■ a. Revising the existing entry for 5– 50–270. ■ b. Revising the existing entries for 5– 80–2000 through 5–80–2090, 5–80–2100 through 5–80–2140, and 5–80–2150 through 5–80–2190. ■ c. Adding new entries for 5–80–2091, 5–80–2144, 5–80–2200, 5–80–2210, 5– 80–2220, 5–80–2230 and 5–80–2240. ■ d. Removing the existing entries for 5– 80–2100 and 5–80–2160. The additions and revisions read as follows: ■ § 52.2420 * Identification of plan. * * (c) * * * * * EPA-APPROVED REGULATIONS IN THE VIRGINIA SIP State citation (9 VAC 5 Chapter 80) State effective date Title/subject * * Chapter 50 * 5–50–270 .......... * * * * Article 4 Standards of Performance for Stationary Sources (Rule 5–4) * * * Standards for Major Stationary Sources (Nonattainment Areas). * Chapter 80 9/1/06 Applicability ............................................................... 5/1/02 9/1/06 5–80–2010 ........ Definitions ................................................................. 5/1/02 9/1/06 5–80–2020 ........ General ..................................................................... 5/1/02 9/1/06 5–80–2030 ........ Applications ............................................................... 5/1/02 9/1/06 5–80–2040 ........ Application information required ............................... 5/1/02 9/1/06 5–80–2050 ........ Standards and conditions for granting permits ........ 5/1/02 9/1/06 5–80–2060 ........ Action on permit applications ................................... 5/1/02 9/1/06 5–80–2070 ........ Public participation .................................................... 5/1/02 9/1/06 5–80–2080 ........ ebenthall on PROD1PC60 with RULES * * 10/22/08 [Insert page number where the document begins]. Explanation [former SIP citation] * * Changes ‘‘Qualifying pollutant’’ to ‘‘Regulated NSR pollutant’’. Limited Approval. * * * * * * Article 9 Permits for Major Stationary Sources and Major Modifications Locating in Nonattainment Areas 5–80–2000 ........ Compliance determination and verification by performance testing. 5/1/02 9/1/06 5–80–2090 ........ Application review and analysis ............................... 5/1/02 9/1/06 5–80–2091 ........ Source Obligation ..................................................... 9/1/06 VerDate Aug<31>2005 EPA approval date 15:16 Oct 21, 2008 Jkt 217001 PO 00000 Frm 00046 Fmt 4700 Sfmt 4700 10/22/08 [Insert page number where the document begins]. 10/22/08 [Insert page number where the document begins]. 10/22/08 [Insert page number where the document begins]. 10/22/08 [Insert page number where the document begins]. 10/22/08 [Insert page number where the document begins]. 10/22/08 [Insert page number where the document begins]. 10/22/08 [Insert page number where the document begins]. 10/22/08 [Insert page number where the document begins]. 10/22/08 [Insert page number where the document begins]. 10/22/08 [Insert page number where the document begins]. 10/22/08 [Insert page number where the document begins]. E:\FR\FM\22OCR1.SGM 22OCR1 Limited Approval of 9/1/ 06 amendments. Limited Approval of 9/1/ 06 amendments. Limited Approval of 9/1/ 06 amendments. Limited Approval of 9/1/ 06 amendments. Limited Approval of 9/1/ 06 amendments. Limited Approval of 9/1/ 06 amendments. Limited Approval of 9/1/ 06 amendments. Limited Approval of 9/1/ 06 amendments. Limited Approval of 9/1/ 06 amendments. Limited Approval of 9/1/ 06 amendments. New. Limited Approval. 62897 Federal Register / Vol. 73, No. 205 / Wednesday, October 22, 2008 / Rules and Regulations EPA-APPROVED REGULATIONS IN THE VIRGINIA SIP—Continued State citation (9 VAC 5 Chapter 80) Title/subject 5–80–2110 ........ Interstate Pollution Abatement ................................. 5/1/02 9/1/06 5–80–2120 ........ Offsets ....................................................................... 5/1/02 9/1/06 5–80–2130 ........ 5/1/02 9/1/06 5–80–2140 ........ De minimus increases and stationary source modification alternatives for ozone nonattainment areas classified as serious or severe in 9 VAC 5– 20–204. Exception .................................................................. 5–80–2144 ........ Actuals plantwide applicability limits (PALs) ............ 9/1/06 5–80–2150 ........ Compliance with local zoning requirements ............. 5/1/02 9/1/06 5–80–2170 ........ Transfer of permits ................................................... 5/1/02 9/1/06 5–80–2180 ........ Permit invalidation, revocation and enforcement ..... 5/1/02 9/1/06 5–80–2190 ........ Existence of permit no defense ................................ 5/1/02 9/1/06 5–80–2200 ........ Changes to permits .................................................. 5/1/02 9/1/06 5–80–2210 ........ Administrative permit amendments .......................... 5/1/02 9/1/06 5–80–2220 ........ Minor permit amendments ........................................ 5/1/02 9/1/06 5–80–2230 ........ Significant amendment procedures .......................... 5/1/02 9/1/06 5–80–2240 ........ Reopening for cause ................................................ 5/1/02 9/1/06 * * * * * * State effective date * * 5/1/02 9/1/06 * ACTION: 10/22/08 [Insert page number where the document begins]. 10/22/08 [Insert page number where the document begins]. 10/22/08 [Insert page number where the document begins]. 10/22/08 [Insert page number where the document begins]. 10/22/08 [Insert page number where the document begins]. 10/22/08 [Insert page number where the document begins]. 10/22/08 [Insert page number where the document begins]. 10/22/08 [Insert page number where the document begins]. 10/22/08 [Insert page number where the document begins]. 10/22/08 [Insert page number where the document begins]. 10/22/08 [Insert page number where the document begins]. 10/22/08 [Insert page number where the document begins]. 10/22/08 [Insert page number where the document begins]. 10/22/08 [Insert page number where the document begins]. * Final rule. ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 ebenthall on PROD1PC60 with RULES [EPA–R03–OAR–2007–0521; FRL–8731–9] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Virginia Major New Source Review, Prevention of Significant Deterioration (PSD) Environmental Protection Agency (EPA). AGENCY: VerDate Aug<31>2005 15:16 Oct 21, 2008 Jkt 217001 SUMMARY: EPA is granting limited approval of a State Implementation Plan (SIP) revision submitted by the Commonwealth of Virginia. This revision action establishes the limited approval of a State Implementation Plan (SIP) revision submitted by the Commonwealth of Virginia on October 10, 2006. The intended effect of this action is to grant limited approval of the September 1, 2006 regulatory amendments to Virginia’s existing new source review permit program for owners of sources located or locating in prevention of significant deterioration (PSD) areas. This action is being taken under the Clean Air Act (CAA or the Act). PO 00000 Frm 00047 Fmt 4700 * Sfmt 4700 Limited Approval of 9/1/ 06 amendments. Limited Approval of 9/1/ 06 amendments. Limited Approval of 9/1/ 06 amendments. Limited Approval of 9/1/ 06 amendments. New. Limited Approval. Limited Approval of 9/1/ 06 amendments. Limited Approval of 9/1/ 06 amendments. Limited Approval of 9/1/ 06 amendments. Limited Approval of 9/1/ 06 amendments. New. Limited Approval of 9/1/06 amendments. New. Limited Approval of 9/1/06 amendments. New. Limited Approval of 9/1/06 amendments. New. Limited Approval of 9/1/06 amendments. New. Limited Approval of 9/1/06 amendments. * Effective Date: This final rule is effective on November 21, 2008. ADDRESSES: EPA has established a docket for this action under Docket ID Number EPA–R03–OAR–2007–0521. All documents in the docket are listed in the https://www.regulations.gov Web site. Although listed in the electronic docket, some information is not publicly available, i.e., 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 either electronically through https://www.regulations.gov or in hard copy for public inspection during DATES: [FR Doc. E8–25019 Filed 10–21–08; 8:45 am] BILLING CODE 6560–50–P Explanation [former SIP citation] EPA approval date E:\FR\FM\22OCR1.SGM 22OCR1

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 73, Number 205 (Wednesday, October 22, 2008)]
[Rules and Regulations]
[Pages 62893-62897]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-25019]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2007-0522; FRL-8731-8]

Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Major New Source Review for Nonattainment Areas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is granting limited approval of a State Implementation
Plan (SIP) revision submitted by the Commonwealth of Virginia. This
revision action establishes the limited approval of a State
Implementation Plan (SIP) revision submitted by the Commonwealth of
Virginia on February 12, 2007. The intended effect of this action is to
grant limited approval of the September 1, 2006 regulatory amendments
to Virginia's existing new source review permit program for owners of
sources located or locating in new source review nonattainment areas.
This action is also providing full approval of a related SIP revision
submitted by the Commonwealth on December 16, 2003, pertaining to
amendments made to Virginia's existing nonattainment new source review
permit program at that time. This action is being taken under the Clean
Air Act (CAA or the Act).

DATES: Effective Date: This final rule is effective on November 21,
2008.

ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2007-0522. All documents in the docket are listed in
the https://www.regulations.gov Web site. Although listed in the
electronic docket, some information is not publicly available, i.e.,
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 either electronically through https://
www.regulations.gov or in hard copy for public inspection during normal
business hours at the Air Protection Division, U.S. Environmental
Protection Agency, Region III, 1650

[[Page 62894]]

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: Sharon McCauley, (215) 814-3376, or by
e-mail at mccauley.sharon@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

On June 27, 2008 (73 FR 36477), EPA published a notice of proposed
rulemaking (NPR) proposing limited approval of amendments to Virginia's
existing new source review permit program for owners of sources located
or locating in nonattainment new source review (NNSR) areas, as
submitted to EPA as revisions to the Virginia SIP on February 12, 2007
and approval of certain other amendments to Virginia regulations
submitted to EPA on December 16, 2003.
The February 12, 2007 SIP revision submission consisted of
amendments to Legislative Rules 9 VAC 5 Chapter 50, Article 4--
Stationary Sources and 9 VAC 5 Chapter 80, Article 9--Permits for
Construction and Major Modification of Major Stationary Sources of Air
Pollution which Cause or Contribute to Nonattainment. These rules were
adopted by the Commonwealth of Virginia State Air Pollution Control
Board on June 21, 2006 and became effective September 1, 2006. The
December 16, 2003 SIP revision submission consisted of additional
amendments to Legislative Rule 9 VAC Chapter 80, Article 9--Permits for
Construction and Major Modification of Major Stationary Sources of Air
Pollution which Cause or Contribute to Nonattainment.
In this action, EPA is granting limited approval of the February
12, 2007 amendments to Chapter 50, Article 4 and Chapter 80, Article 9,
as well as full approval of the December 16, 2003 amendments to Chapter
80, Article 9. Virginia also submitted changes to 9 VAC Chapter 80,
Article 6--Permits for New and Modified Stationary Sources as part of
the February 12, 2007 SIP revision. However, as stated in the NPR, EPA
is not taking any action on Chapter 80, Article 6 at this time.

II. Summary of SIP Revision

Why is Virginia changing its NSR program?

In its December 2002 regulatory action, EPA changed many aspects of
the regulations governing the PSD and nonattainment NSR programs,
collectively referred to as ``NSR''. Virginia accepted the conceptual
framework of EPA's NSR reform revisions but tailored the program to
their State-specific objectives. Virginia's regulations differ in some
respects from EPA's regulations. However, these differences are not
significant. EPA has concluded that Virginia's regulations conform to
the minimum program elements in 40 CFR 51.165 despite some variations
in their rules from the federal program. Notable variations were
described in the proposal action and will not be restated here.

III. Limited Approval

Why is EPA granting only ``limited approval'' of Virginia's NSR
regulations, effective September 1, 2006 for Nonattainment NSR areas?

Virginia's regulation 9 VAC 5-80-2010 added a new definition for
``baseline actual emissions'' to reflect changes to the NSR program
found in the 2002 Federal NSR Reform rule. Virginia's definition for
``baseline actual emissions'' varies from the Federal definition at 40
CFR 51.166(b)(47) in two ways. First, for both electric generating
units (EGUs) and non-EGUs, Virginia's rule allows the use of different
baselines for different pollutants if the owner can demonstrate to the
satisfaction of the State Air Pollution Control Board (Board) that a
different baseline period for a different pollutant(s) is more
appropriate due to extenuating circumstances. This is acceptable to
EPA.
However, for non-EGUs, the 24-month baseline period must occur
within the five-year period preceding the date the owner begins actual
construction or the permit application is deemed complete, whichever is
earlier, unless the Board allows a different time period that it deems
is more representative of normal source operations. Allowing a more
representative period by the Board is acceptable, however, the
Commonwealth's regulations could be interpreted to allow this period to
be established beyond the 10-year time period allowed in the Federal
NSR Reform rule.
As described in our June 27 proposed rule the Virginia regulations
meet the general Federal criteria for expanding the lookback period
beyond the old requirement of the most recent 24-month period, and in
this respect are consistent with Federal requirements.
EPA is granting limited approval because the language of the
regulation does not limit the look-back period to the Federally
mandated 10 years. Virginia has represented to EPA that the regulation
was not intended to allow sources to extend the look-back period beyond
10 years. EPA would look unfavorably upon any use of discretion by
Virginia that would allow for baselines that exceed a 10-year lookback
period. EPA expects Virginia to correct the definition at 9 VAC 5-80-
2010 by limiting the discretionary lookback period to 10 years. When
Virginia makes this amendment, they may submit the revised regulation
for consideration for full approval of the Nonattainment NSR program.
Despite the fact that the Virginia nonattainment new source review
regulations may literally be construed to allow for a source to look
beyond the 10 years prescribed by the Federal regulations, the Virginia
regulations nevertheless will strengthen the Virginia SIP.

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 (1) that are generated or developed
before the commencement of a voluntary environmental assessment; (2)
that are prepared independently of the assessment process; (3) that
demonstrate a clear, imminent and substantial danger to the public
health or environment; or (4) that 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,''

[[Page 62895]]

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
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 Clean Air Act is likewise
unaffected by this, or any, state audit privilege or immunity law.
Other specific requirements of this SIP revision and the rationale
for EPA's proposed action are explained in the NPR and will not be
restated here. No public comments were received on the NPR.

V. Final Action

EPA has determined that those regulatory amendments to the
nonattainment NSR program at Chapter 50, Article 4 and Chapter 80,
Article 9 that were submitted on February 12, 2007 are being granted
limited approval as noted in Section III above. EPA has also determined
that the regulatory amendments to the nonattainment NSR permit program
at Chapter 80, Article 9, as submitted on December 16, 2003 are fully
approvable. EPA has determined that these regulatory revisions meet the
minimum requirements of 40 CFR 51.165 and the Clean Air Act.

VI. Statutory and Executive Order Reviews

A. General Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it 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). This rule also does not
have tribal implications because it will not have a substantial direct
effect on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes,
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
This action also does not have Federalism implications because it does
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999).
This action merely approves a state rule implementing a Federal
requirement, and does not alter the relationship or the distribution of
power and responsibilities established in the Clean Air Act. This rule
also is not subject to Executive Order 13045 (62 FR 19885, April 23,
1997), because it approves a state rule implementing a Federal
standard.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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 rule 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. This rule 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 Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by December 22, 2008. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule 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 granting limited approval of the Virginia
nonattainment new source review program for sources locating or located
in nonattainment areas may not be challenged later in

[[Page 62896]]

proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.

Dated: October 9, 2008.
William T. Wisniewski,
Acting Regional Administrator, Region III.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for 40 CFR 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:
0
a. Revising the existing entry for 5-50-270.
0
b. Revising the existing entries for 5-80-2000 through 5-80-2090, 5-80-
2100 through 5-80-2140, and 5-80-2150 through 5-80-2190.
0
c. Adding new entries for 5-80-2091, 5-80-2144, 5-80-2200, 5-80-2210,
5-80-2220, 5-80-2230 and 5-80-2240.
0
d. Removing the existing entries for 5-80-2100 and 5-80-2160.
The additions and revisions read as follows:

Sec. 52.2420 Identification of plan.

* * * * *
(c) * * *

EPA-Approved Regulations in the Virginia SIP
----------------------------------------------------------------------------------------------------------------
State citation (9 VAC 5 State Explanation [former
Chapter 80) Title/subject effective date EPA approval date SIP citation]
----------------------------------------------------------------------------------------------------------------

----------------------------------------------------------------------------------------------------------------
* * * * * * *
Chapter 50 Article 4 Standards of Performance for Stationary Sources (Rule 5-4)
----------------------------------------------------------------------------------------------------------------

* * * * * * *
5-50-270................... Standards for Major 9/1/06 10/22/08 [Insert page Changes ``Qualifying
Stationary Sources number where the pollutant'' to
(Nonattainment document begins]. ``Regulated NSR
Areas). pollutant''. Limited
Approval.

----------------------------------------------------------------------------------------------------------------
* * * * * * *
Chapter 80 Article 9 Permits for Major Stationary Sources and Major Modifications Locating in Nonattainment
Areas
----------------------------------------------------------------------------------------------------------------
5-80-2000.................. Applicability........ 5/1/02 10/22/08 [Insert page Limited Approval of 9/
9/1/06 number where the 1/06 amendments.
document begins].
5-80-2010.................. Definitions.......... 5/1/02 10/22/08 [Insert page Limited Approval of 9/
9/1/06 number where the 1/06 amendments.
document begins].
5-80-2020.................. General.............. 5/1/02 10/22/08 [Insert page Limited Approval of 9/
9/1/06 number where the 1/06 amendments.
document begins].
5-80-2030.................. Applications......... 5/1/02 10/22/08 [Insert page Limited Approval of 9/
9/1/06 number where the 1/06 amendments.
document begins].
5-80-2040.................. Application 5/1/02 10/22/08 [Insert page Limited Approval of 9/
information required. 9/1/06 number where the 1/06 amendments.
document begins].
5-80-2050.................. Standards and 5/1/02 10/22/08 [Insert page Limited Approval of 9/
conditions for 9/1/06 number where the 1/06 amendments.
granting permits. document begins].
5-80-2060.................. Action on permit 5/1/02 10/22/08 [Insert page Limited Approval of 9/
applications. 9/1/06 number where the 1/06 amendments.
document begins].
5-80-2070.................. Public participation. 5/1/02 10/22/08 [Insert page Limited Approval of 9/
9/1/06 number where the 1/06 amendments.
document begins].
5-80-2080.................. Compliance 5/1/02 10/22/08 [Insert page Limited Approval of 9/
determination and 9/1/06 number where the 1/06 amendments.
verification by document begins].
performance testing.
5-80-2090.................. Application review 5/1/02 10/22/08 [Insert page Limited Approval of 9/
and analysis. 9/1/06 number where the 1/06 amendments.
document begins].
5-80-2091.................. Source Obligation.... 9/1/06 10/22/08 [Insert page New. Limited
number where the Approval.
document begins].

[[Page 62897]]

5-80-2110.................. Interstate Pollution 5/1/02 10/22/08 [Insert page Limited Approval of 9/
Abatement. 9/1/06 number where the 1/06 amendments.
document begins].
5-80-2120.................. Offsets.............. 5/1/02 10/22/08 [Insert page Limited Approval of 9/
9/1/06 number where the 1/06 amendments.
document begins].
5-80-2130.................. De minimus increases 5/1/02 10/22/08 [Insert page Limited Approval of 9/
and stationary 9/1/06 number where the 1/06 amendments.
source modification document begins].
alternatives for
ozone nonattainment
areas classified as
serious or severe in
9 VAC 5-20-204.
5-80-2140.................. Exception............ 5/1/02 10/22/08 [Insert page Limited Approval of 9/
9/1/06 number where the 1/06 amendments.
document begins].
5-80-2144.................. Actuals plantwide 9/1/06 10/22/08 [Insert page New. Limited
applicability limits number where the Approval.
(PALs). document begins].
5-80-2150.................. Compliance with local 5/1/02 10/22/08 [Insert page Limited Approval of 9/
zoning requirements. 9/1/06 number where the 1/06 amendments.
document begins].
5-80-2170.................. Transfer of permits.. 5/1/02 10/22/08 [Insert page Limited Approval of 9/
9/1/06 number where the 1/06 amendments.
document begins].
5-80-2180.................. Permit invalidation, 5/1/02 10/22/08 [Insert page Limited Approval of 9/
revocation and 9/1/06 number where the 1/06 amendments.
enforcement. document begins].
5-80-2190.................. Existence of permit 5/1/02 10/22/08 [Insert page Limited Approval of 9/
no defense. 9/1/06 number where the 1/06 amendments.
document begins].
5-80-2200.................. Changes to permits... 5/1/02 10/22/08 [Insert page New. Limited Approval
9/1/06 number where the of 9/1/06
document begins]. amendments.
5-80-2210.................. Administrative permit 5/1/02 10/22/08 [Insert page New. Limited Approval
amendments. 9/1/06 number where the of 9/1/06
document begins]. amendments.
5-80-2220.................. Minor permit 5/1/02 10/22/08 [Insert page New. Limited Approval
amendments. 9/1/06 number where the of 9/1/06
document begins]. amendments.
5-80-2230.................. Significant amendment 5/1/02 10/22/08 [Insert page New. Limited Approval
procedures. 9/1/06 number where the of 9/1/06
document begins]. amendments.
5-80-2240.................. Reopening for cause.. 5/1/02 10/22/08 [Insert page New. Limited Approval
9/1/06 number where the of 9/1/06
document begins]. amendments.

* * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. E8-25019 Filed 10-21-08; 8:45 am]
BILLING CODE 6560-50-P

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