Approval and Promulgation of Air Quality Implementation Plans; Virginia; Deferral for CO2, 65627-65630 [2012-26539]

Download as PDF wreier-aviles on DSK7SPTVN1PROD with RULES Federal Register / Vol. 77, No. 210 / Tuesday, October 30, 2012 / Rules and Regulations Order 13132 (64 FR 43255, August 10, 1999); • Are not economically significant regulatory actions based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Are 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 • Do 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, these actions do 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. 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 these actions 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 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 31, 2012. 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 VerDate Mar<15>2010 13:15 Oct 29, 2012 Jkt 229001 65627 enforce its requirements. (See section 307(b)(2).) quality-assured ozone monitoring data through 2011. List of Subjects in 40 CFR Part 52 [FR Doc. 2012–26524 Filed 10–29–12; 8:45 am] Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. Dated: October 15, 2012. H. Curtis Spalding, Regional Administrator, EPA New England. Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows: PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS Authority: 42 U.S.C. 7401 et seq. Subpart EE—New Hampshire 2. Section 52.1534 is amended by adding paragraphs (g) and (h) to read as follows: ■ Control strategy: Ozone. * * * * (g) Determination of Attainment. Effective November 29, 2012, EPA is determining that the Portsmouth-DoverRochester one-hour ozone nonattainment area met the one-hour ozone standard, by the area’s applicable attainment date of November 15, 1999, based on 1997–1999 complete, certified, quality-assured ozone monitoring data at all monitoring sites in the area. Separate from and independent of this determination, EPA is determining that the Portsmouth-Dover-Rochester serious one-hour ozone nonattainment area has attained the one-hour ozone standard since 1999 and continues to attain based on complete, quality-assured data ozone monitoring data through 2011. (h) Determination of Attainment. Effective November 29, 2012, EPA is determining that the Manchester onehour ozone nonattainment area met the one-hour ozone standard, by the area’s applicable attainment date of November 15, 1993, based on 1991–1993 complete, certified, quality-assured ozone monitoring data at all monitoring sites in the area. Separate from and independent of this determination, EPA is determining that the Manchester marginal one-hour ozone nonattainment area has attained the one-hour ozone standard, since 1993, and that it continues to attain based on complete PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 40 CFR Part 52 [EPA–R03–OAR–2012–0169; FRL–9745–5] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Deferral for CO2 Emissions From Bioenergy and other Biogenic Sources Under the Prevention of Significant Deterioration Program Environmental Protection Agency (EPA). ACTION: Final rule. 1. The authority citation for part 52 continues to read as follows: * ENVIRONMENTAL PROTECTION AGENCY AGENCY: ■ § 52.1534 BILLING CODE 6560–50–P EPA is approving a State Implementation Plan (SIP) revision submitted by the Virginia Department of Environmental Quality (VADEQ) on December 14, 2011. This revision defers until July 21, 2014 the application of the Prevention of Significant Deterioration (PSD) permitting requirements to biogenic carbon dioxide (CO2) emissions from bioenergy and other biogenic stationary sources in the Commonwealth of Virginia. This action is being taken under the Clean Air Act (CAA). DATES: This final rule is effective on November 29, 2012. ADDRESSES: EPA has established a docket for this action under Docket ID Number EPA–R03–OAR–2012–0169. All documents in the docket are listed in the 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 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 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: David Talley, (215) 814–2117, or by email at talley.david@epa.gov. SUMMARY: E:\FR\FM\30OCR1.SGM 30OCR1 65628 Federal Register / Vol. 77, No. 210 / Tuesday, October 30, 2012 / Rules and Regulations SUPPLEMENTARY INFORMATION: I. Background Throughout this document, whenever ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean EPA. On April 18, 2012, (77 FR 23178), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed approval of a revision to the Virginia SIP which would defer until July 21, 2014 the application of PSD permitting requirements to biogenic CO2 emissions from bioenergy and other biogenic stationary sources in the commonwealth of Virginia. Other specific requirements of Virginia’s SIP revision and the rationale for EPA’s proposed action are explained in the NPR and will not be restated here. The formal SIP revision was submitted by VADEQ on December 14, 2011. wreier-aviles on DSK7SPTVN1PROD with RULES II. Summary of SIP Revision EPA incorporated the biomass deferral into the regulations governing state programs and into the Federal PSD program by amending the definition of ‘‘subject to regulation’’ under 40 CFR 51.166 and 52.21 respectively. Virginia has adopted this same approach. The SIP revision incorporates the Biomass Deferral into Virginia’s PSD program by amending the definition of ‘‘subject to regulation’’ under 9VAC5–85–50C. The language adopted by Virginia mirrors the language in the Federal regulations. EPA last took action on these provisions on May 13, 2011 (76 FR 27898). In addition to the incorporation of the Biomass Deferral, the SIP revision makes a minor, clarifying revision to 9VAC5–85–50B. III. General Information Pertaining to SIP Submittals From the Commonwealth of Virginia In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) ‘‘privilege’’ for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia’s legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia’s Voluntary Environmental Assessment Privilege VerDate Mar<15>2010 13:15 Oct 29, 2012 Jkt 229001 Law, Va. Code Sec. 10.1–1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law. On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1–1198, precludes granting a privilege to documents and information ‘‘required by law,’’ including documents and information ‘‘required by Federal law to maintain program delegation, authorization or approval,’’ since Virginia must ‘‘enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts * * *.’’ The opinion concludes that ‘‘[r]egarding § 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 PSD 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 PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law. IV. EPA’s Response to Comments Received on the Proposed Action EPA received two sets of timely public comments. Both sets were supportive of our proposed action, and are included in the docket. While it is not generally our practice to respond to specific comments when those comments are in support of a proposed action, one of the submitted comments contained some factual inaccuracies which we feel should be addressed and corrected for the record. One commenter wrote in closing: ‘‘Because the PSD provisions of the Biomass Deferral have already been incorporated into Virginia’s SIP and approved by EPA in 2011, the current 2012 proposed SIP revisions incorporate the Title V provisions of the Biomass Deferral through (sic) amendments to 9VAC5 Chapter 85, Permits For Stationary Sources of Pollutants Subject to Regulation, Part II—Federal (Title V) Operating Permit Actions. We agree with EPA’s conclusion that the proposed Title V amendments to Virginia’s SIP are consistent with federal requirements and should therefore be approved as proposed.’’ EPA did not ‘‘incorporate the PSD provisions of the Biomass Deferral into Virginia’s SIP in 2011.’’ Indeed, as we stated in our notice of proposed rulemaking and reiterated earlier, the purpose of the present rulemaking action is to incorporate the Biomass Deferral provisions into the Virginia SIP. It is not clear to which 2011 action the commenter is referring. On May 13, 2011, EPA took final action to approve the Tailoring Rule provisions into the Virginia SIP (76 FR 27898). However, the Biomass Deferral is a separate rulemaking action and was not addressed at that time. Furthermore, as we stated in our notice of proposed rulemaking, the present rulemaking action does not address the title V provisions of the Biomass Deferral, and addresses only Virginia’s PSD program (See, 77 FR 23179, Footnote No. 1). V. Final Action EPA is approving the revisions to 9VAC5–85–50 into the Virginia SIP. E:\FR\FM\30OCR1.SGM 30OCR1 65629 Federal Register / Vol. 77, No. 210 / Tuesday, October 30, 2012 / Rules and Regulations VI. Statutory and Executive Order Reviews A. General Requirements Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA’s role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action: • Is not a ‘‘significant regulatory action’’ subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993); • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4); • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. B. Submission to Congress and the Comptroller General The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). C. Petitions for Judicial Review Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 31, 2012. 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 GHG permitting under Virginia’s PSD program 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, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Dated: October 10, 2012. W.C. Early, Acting Regional Administrator, Region III. 40 CFR Part 52 is amended as follows: 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 revising the entry for Chapter 85, Section 5–85–50 to read as follows: ■ § 52.2420 * Identification of plan. * * (c) * * * * * EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES State citation State effective date Title/subject Explanation [former SIP citation] EPA approval date * * * * Permits for Stationary Sources of Pollutants Subject to Regulation * * * Part III ...................................... wreier-aviles on DSK7SPTVN1PROD with RULES * * 9 VAC 5, Chapter 85 ............... * * * * Prevention of Significant Deterioration Permit Actions * * * 5–85–50 ................................... * VerDate Mar<15>2010 * Definitions ............................... * 13:15 Oct 29, 2012 * Jkt 229001 PO 00000 * 11/9/11 * * * 10/30/12 [Insert page number Revised definition of ‘‘subject where the document begins]. to regulation.’’ * Frm 00019 Fmt 4700 * Sfmt 4700 E:\FR\FM\30OCR1.SGM * 30OCR1 * 65630 * * Federal Register / Vol. 77, No. 210 / Tuesday, October 30, 2012 / Rules and Regulations * * * [FR Doc. 2012–26539 Filed 10–29–12; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R03–OAR–2010–0152; FRL–9746–1] Approval and Promulgation of Air Quality Implementation Plans; District of Columbia; The 2002 Base Year Emissions Inventory for the Washington DC–MD–VA Nonattainment Area for the 1997 Fine Particulate Matter National Ambient Air Quality Standard Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: EPA is approving the fine particulate matter (PM2.5) 2002 base year emissions inventory portion of the District of Columbia State Implementation Plan (SIP) revision submitted by the District of Columbia, through the District Department of the Environment (DDOE), on April 2, 2008. The emissions inventory is part of the April 2, 2008 SIP revision that was submitted to meet nonattainment requirements related to the District of Columbia’s portion of the Washington DC–MD–VA nonattainment area (hereafter referred to as DC Area or Area) for the 1997 PM2.5 National Ambient Air Quality Standard (NAAQS) SIP. EPA is approving the 2002 base year PM2.5 emissions inventory in accordance with the requirements of the Clean Air Act (CAA). DATES: This final rule is effective on November 29, 2012. ADDRESSES: EPA has established a docket for this action under Docket ID Number EPA–R03–OAR–2010–0152. All documents in the docket are listed in the 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 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 Arch Street, wreier-aviles on DSK7SPTVN1PROD with RULES SUMMARY: VerDate Mar<15>2010 13:15 Oct 29, 2012 Jkt 229001 Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the District of Columbia Department of the Environment, Air Quality Division, 1200 1st Street NE., 5th floor, Washington, DC 20002. FOR FURTHER INFORMATION CONTACT: Asrah Khadr, (215) 814–2071, or by email at khadr.asrah@epa.gov. SUPPLEMENTARY INFORMATION: I. Background Throughout this document, whenever ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean EPA. On August 23, 2012 (77 FR 50964), EPA published a notice of proposed rulemaking (NPR) for the District of Columbia. The NPR proposed approval of the 2002 base year emissions inventory portion of the District of Columbia SIP revision. The formal SIP revision was submitted by the District of Columbia on April 2, 2008. II. Summary of SIP Revision The 2002 base year emissions inventory submitted by DDOE on April 2, 2008 includes emissions estimates that cover the general source categories of point sources, non-road mobile sources, area sources, on-road mobile sources, and biogenic sources. The pollutants that comprise the inventory are nitrogen oxides (NOX), volatile organic compounds (VOCs), PM2.5, coarse particles (PM10), ammonia (NH3), and sulfur dioxide (SO2). EPA has reviewed the results, procedures and methodologies for the base year emissions inventory submitted by DDOE. The year 2002 was selected by DDOE as the base year for the emissions inventory per 40 CFR 51.1008(b). A discussion of the emissions inventory development as well as the emissions inventory can be found in Appendix B of the April 2, 2008 SIP submittal and in the NPR. Specific requirements of the base year inventory and the rationale for EPA’s action are explained in the NPR and will not be restated here. No public comments were received on the NPR. III. Final Action EPA is approving the 2002 base year PM2.5 emissions inventory as a revision to the District of Columbia SIP. IV. 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, PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action: • Is not a ‘‘significant regulatory action’’ subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993); • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4); • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. B. Submission to Congress and the Comptroller General The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a E:\FR\FM\30OCR1.SGM 30OCR1

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 77, Number 210 (Tuesday, October 30, 2012)]
[Rules and Regulations]
[Pages 65627-65630]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-26539]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2012-0169; FRL-9745-5]

Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Deferral for CO2 Emissions From Bioenergy and other Biogenic
Sources Under the Prevention of Significant Deterioration Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is approving a State Implementation Plan (SIP) revision
submitted by the Virginia Department of Environmental Quality (VADEQ)
on December 14, 2011. This revision defers until July 21, 2014 the
application of the Prevention of Significant Deterioration (PSD)
permitting requirements to biogenic carbon dioxide (CO2)
emissions from bioenergy and other biogenic stationary sources in the
Commonwealth of Virginia. This action is being taken under the Clean
Air Act (CAA).

DATES: This final rule is effective on November 29, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2012-0169. All documents in the docket are listed in
the 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 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 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: David Talley, (215) 814-2117, or by
email at talley.david@epa.gov.

[[Page 65628]]

SUPPLEMENTARY INFORMATION:

I. Background

Throughout this document, whenever ``we,'' ``us,'' or ``our'' is
used, we mean EPA. On April 18, 2012, (77 FR 23178), EPA published a
notice of proposed rulemaking (NPR) for the Commonwealth of Virginia.
The NPR proposed approval of a revision to the Virginia SIP which would
defer until July 21, 2014 the application of PSD permitting
requirements to biogenic CO2 emissions from bioenergy and
other biogenic stationary sources in the commonwealth of Virginia.
Other specific requirements of Virginia's SIP revision and the
rationale for EPA's proposed action are explained in the NPR and will
not be restated here. The formal SIP revision was submitted by VADEQ on
December 14, 2011.

II. Summary of SIP Revision

EPA incorporated the biomass deferral into the regulations
governing state programs and into the Federal PSD program by amending
the definition of ``subject to regulation'' under 40 CFR 51.166 and
52.21 respectively. Virginia has adopted this same approach. The SIP
revision incorporates the Biomass Deferral into Virginia's PSD program
by amending the definition of ``subject to regulation'' under 9VAC5-85-
50C. The language adopted by Virginia mirrors the language in the
Federal regulations. EPA last took action on these provisions on May
13, 2011 (76 FR 27898). In addition to the incorporation of the Biomass
Deferral, the SIP revision makes a minor, clarifying revision to 9VAC5-
85-50B.

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

In 1995, Virginia adopted legislation that provides, subject to
certain conditions, for an environmental assessment (audit)
``privilege'' for voluntary compliance evaluations performed by a
regulated entity. The legislation further addresses the relative burden
of proof for parties either asserting the privilege or seeking
disclosure of documents for which the privilege is claimed. Virginia's
legislation also provides, subject to certain conditions, for a penalty
waiver for violations of environmental laws when a regulated entity
discovers such violations pursuant to a voluntary compliance evaluation
and voluntarily discloses such violations to the Commonwealth and takes
prompt and appropriate measures to remedy the violations. Virginia's
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and
information about the content of those documents that are the product
of a voluntary environmental assessment. The Privilege Law does not
extend to documents or information that: (1) Are generated or developed
before the commencement of a voluntary environmental assessment; (2)
are prepared independently of the assessment process; (3) demonstrate a
clear, imminent and substantial danger to the public health or
environment; or (4) are required by law. On January 12, 1998, the
Commonwealth of Virginia Office of the Attorney General provided a
legal opinion that states that the Privilege law, Va. Code Sec. 10.1-
1198, precludes granting a privilege to documents and information
``required by law,'' including documents and information ``required by
Federal law to maintain program delegation, authorization or
approval,'' since Virginia must ``enforce Federally authorized
environmental programs in a manner that is no less stringent than their
Federal counterparts * * *.'' The opinion concludes that ``[r]egarding
Sec. 10.1-1198, therefore, documents or other information needed for
civil or criminal enforcement under one of these programs could not be
privileged because such documents and information are essential to
pursuing enforcement in a manner required by Federal law to maintain
program delegation, authorization or approval.''
Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that
``[t]o the extent consistent with requirements imposed by Federal
law,'' any person making a voluntary disclosure of information to a
state agency regarding a violation of an environmental statute,
regulation, permit, or administrative order is granted immunity from
administrative or civil penalty. The Attorney General's January 12,
1998 opinion states that the quoted language renders this statute
inapplicable to enforcement of any Federally authorized programs, since
``no immunity could be afforded from administrative, civil, or criminal
penalties because granting such immunity would not be consistent with
Federal law, which is one of the criteria for immunity.'' Therefore,
EPA has determined that Virginia's Privilege and Immunity statutes will
not preclude the Commonwealth from enforcing its PSD program consistent
with the Federal requirements. In any event, because EPA has also
determined that a state audit privilege and immunity law can affect
only state enforcement and cannot have any impact on Federal
enforcement authorities, EPA may at any time invoke its authority under
the CAA, including, for example, sections 113, 167, 205, 211 or 213, to
enforce the requirements or prohibitions of the state plan,
independently of any state enforcement effort. In addition, citizen
enforcement under section 304 of the CAA is likewise unaffected by
this, or any, state audit privilege or immunity law.

IV. EPA's Response to Comments Received on the Proposed Action

EPA received two sets of timely public comments. Both sets were
supportive of our proposed action, and are included in the docket.
While it is not generally our practice to respond to specific comments
when those comments are in support of a proposed action, one of the
submitted comments contained some factual inaccuracies which we feel
should be addressed and corrected for the record. One commenter wrote
in closing: ``Because the PSD provisions of the Biomass Deferral have
already been incorporated into Virginia's SIP and approved by EPA in
2011, the current 2012 proposed SIP revisions incorporate the Title V
provisions of the Biomass Deferral through (sic) amendments to 9VAC5
Chapter 85, Permits For Stationary Sources of Pollutants Subject to
Regulation, Part II--Federal (Title V) Operating Permit Actions. We
agree with EPA's conclusion that the proposed Title V amendments to
Virginia's SIP are consistent with federal requirements and should
therefore be approved as proposed.'' EPA did not ``incorporate the PSD
provisions of the Biomass Deferral into Virginia's SIP in 2011.''
Indeed, as we stated in our notice of proposed rulemaking and
reiterated earlier, the purpose of the present rulemaking action is to
incorporate the Biomass Deferral provisions into the Virginia SIP. It
is not clear to which 2011 action the commenter is referring. On May
13, 2011, EPA took final action to approve the Tailoring Rule
provisions into the Virginia SIP (76 FR 27898). However, the Biomass
Deferral is a separate rulemaking action and was not addressed at that
time. Furthermore, as we stated in our notice of proposed rulemaking,
the present rulemaking action does not address the title V provisions
of the Biomass Deferral, and addresses only Virginia's PSD program
(See, 77 FR 23179, Footnote No. 1).

V. Final Action

EPA is approving the revisions to 9VAC5-85-50 into the Virginia
SIP.

[[Page 65629]]

VI. Statutory and Executive Order Reviews

A. General Requirements

Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).

C. Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by December 31, 2012. 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 GHG permitting under Virginia's PSD
program 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, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.

Dated: October 10, 2012.
W.C. Early,
Acting Regional Administrator, Region III.

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 revising
the entry for Chapter 85, Section 5-85-50 to read as follows:

Sec. 52.2420 Identification of plan.

* * * * *
(c) * * *

EPA-Approved Virginia Regulations and Statutes
----------------------------------------------------------------------------------------------------------------
State
State citation Title/subject effective EPA approval date Explanation [former
date SIP citation]
----------------------------------------------------------------------------------------------------------------

* * * * * * *
9 VAC 5, Chapter 85.............. Permits for Stationary Sources of Pollutants Subject to Regulation

* * * * * * *
Part III......................... Prevention of Significant Deterioration Permit Actions

* * * * * * *
5-85-50.......................... Definitions......... 11/9/11 10/30/12 [Insert Revised definition
page number where of ``subject to
the document regulation.''
begins].

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

[[Page 65630]]

* * * * *

[FR Doc. 2012-26539 Filed 10-29-12; 8:45 am]
BILLING CODE 6560-50-P

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