Approval and Promulgation of Air Quality Implementation Plans; Virginia; Permits for Major Stationary Sources and Major Modifications Locating in Prevention of Significant Deterioration Areas and Permits for Major Stationary Sources Locating in Nonattainment Areas or the Ozone Transport Region, 75380-75383 [2012-30585]

Download as PDF 75380 Federal Register / Vol. 77, No. 245 / Thursday, December 20, 2012 / Rules and Regulations ENVIRONMENTAL PROTECTION AGENCY I. Background On September 7, 2012 (77 FR 55168), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR [EPA–R03–OAR–2011–0926; FRL–9763–4] proposed approval of amendments to Virginia’s Prevention of Significant Approval and Promulgation of Air Deterioration (PSD) and nonattainment Quality Implementation Plans; Virginia; New Source Review (NSR) programs to Permits for Major Stationary Sources allow the terms and conditions of and Major Modifications Locating in various elements of the preconstruction Prevention of Significant Deterioration permit program in Virginia to be Areas and Permits for Major Stationary combined into a single permit, establish Sources Locating in Nonattainment limitations for issuance of Plantwide Areas or the Ozone Transport Region Applicability Limits (PALs), and clarify exemptions to Virginia’s permitting AGENCY: Environmental Protection rules regarding the use of alternate fuels. Agency (EPA). The formal SIP revision was submitted ACTION: Final rule. by Virginia on September 27, 2010. The SIP revision will allow SUMMARY: EPA is approving a State preconstruction permits for major Implementation Plan (SIP) revision submitted by the Virginia Department of stationary sources to be combined into Environmental Quality (VADEQ). These one permit with certain restrictions and conditions. Each action to combine revisions allow the terms and permit terms and conditions must conditions of various elements of the include a statement referencing the preconstruction program in Virginia to origin of each term or condition in the be combined into a single permit, combined permit, its effective date and establish limitations for issuance of whether it is state and/or Federally Plantwide Applicability Limits (PALs), provide clarification to the exemption to enforceable. All terms and conditions of Virginia’s permitting rules regarding the contributing permits must be included in the combined permit without change, use of alternate fuels and make minor administrative amendments. This action with certain exceptions, and the combined permit will supersede the is being taken under the Clean Air Act contributing permit. (CAA). In addition, the SIP revision DATES: This final rule is effective on establishes state operating permits as January 22, 2013. the sole mechanism for issuing PAL ADDRESSES: EPA has established a permits. On December 31, 2002 (67 FR docket for this action under Docket ID 80186), EPA published final rule Number EPA–R03–OAR–2011–0926. All changes to 40 CFR parts 51 and 52 documents in the docket are listed in regarding the CAA’s PSD and the www.regulations.gov Web site. nonattainment NSR programs that are Although listed in the electronic docket, collectively known as NSR Reform. some information is not publicly These changes included provisions that available, i.e., confidential business would allow major stationary sources to information (CBI) or other information comply with a PAL to avoid having a whose disclosure is restricted by statute. significant emissions increase that Certain other material, such as triggers the requirements of the major copyrighted material, is not placed on NSR program. The proposed SIP the Internet and will be publicly revision would limit establishing PALs available only in hard copy form. to state operating permits and no longer Publicly available docket materials are allow PALs to be established through available either electronically through major or minor NSR permits. www.regulations.gov or in hard copy for In 2008, the Virginia General public inspection during normal Assembly amended Va. Code Sec. business hours at the Air Protection 10.1322.4 to allow exemptions for Division, U.S. Environmental Protection alternative fuels and raw materials from Agency, Region III, 1650 Arch Street, permit requirements. The SIP revision Philadelphia, Pennsylvania 19103. updates and restructures the exemptions Copies of the State submittal are to ensure that there are no conflicts available at the Virginia Department of between the Virginia Code and Federal Environmental Quality, 629 East Main regulations, including the SIP. Street, Richmond, Virginia 23219. II. Summary of SIP Revision FOR FURTHER INFORMATION CONTACT: Gerallyn Duke, (215) 814–2084, or by This SIP revision consists of revisions email at duke.gerallyn@epa.gov. to the VADEQ regulations at 9VAC5 Chapter 80, Article 8 (Permits for Major SUPPLEMENTARY INFORMATION: erowe on DSK2VPTVN1PROD with 40 CFR Part 52 VerDate Mar<15>2010 15:07 Dec 19, 2012 Jkt 229001 PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 Stationary Sources and Major Modifications Locating in Prevention of Significant Deterioration Areas) and Article 9 (Permits for Major Stationary Sources and Modifications Locating in Nonattainment Areas or the Ozone Transport Region). The following regulations under Article 8 are revised: 5–80–1615 (Definitions), 5–80–1625 (General), 5–80–1695 (Exemptions), 5– 80–1925 (Changes to permits), 5–80– 1935 (Administrative permit amendments), 5–80–1945 (Minor permit amendments), 5–80–1955 (Significant amendment procedures), and 5–80– 1965 (Reopening for cause). Under Article 9, Regulations 5–80–2010 (Definitions), 5–80–2020 (General), 5– 80–2140 (Exemptions), 5–80–2200 (Changes to permits), 5–80–2210 (Administrative permit amendments), 5–80–2220 (Minor permit amendments), 5–80–2230 (Significant amendment procedures) and 5–80–2240 (Reopening for cause) are amended. Under Article 8, Regulation 5–80–1915 (Actions to combine permit terms and conditions) is added and under Article 9, Regulation 5–80–2195 (also called ‘‘Actions to combine permit terms and conditions’’) is added. EPA is approving Virginia’s SIP submission dated September 27, 2010 that consists of the following actions that pertain to Virginia’s PSD and nonattainment NSR Programs: (1) Adding provisions to allow the terms and conditions of the various elements of the NSR Program to be combined into a single permit; (2) establishing state operating permits as the sole mechanism for issuing PALs; (3) clarifying certain exemptions from permitting for alternative fuels to ensure no conflict with federal law and regulation; and (4) making minor administrative amendments. 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 E:\FR\FM\20DER1.SGM 20DER1 erowe on DSK2VPTVN1PROD with Federal Register / Vol. 77, No. 245 / Thursday, December 20, 2012 / Rules and Regulations 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 Llaw, 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 and nonattainment NSR programs VerDate Mar<15>2010 15:07 Dec 19, 2012 Jkt 229001 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. Other specific requirements of the regulations 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. IV. Final Action EPA is approving the September 27, 2010 SIP submission pertaining to Virginia’s PSD and nonattainment NSR programs. V. Statutory and Executive Order Reviews A. General Requirements Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA’s role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action: • Is not a ‘‘significant regulatory action’’ subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993); • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4); • Does not have Federalism implications as specified in Executive PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 75381 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 February 19, 2013. 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 E:\FR\FM\20DER1.SGM 20DER1 75382 Federal Register / Vol. 77, No. 245 / Thursday, December 20, 2012 / Rules and Regulations regarding Virginia’s PSD and NSR permit programs may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. ■ 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 entries for Chapter 80, Sections 5–80–1615, 5–80–1625, and 5– 80–1695. ■ b. Adding an entry for Chapter 80, Section 5–80–1915, after the existing entry for 5–80–1865. ■ Dated: December 10, 2012. Shawn M. Garvin, Regional Administrator, Region III. 40 CFR part 52 is amended as follows: c. Revising the entries for Chapter 80, Sections 5–80–1925, 5–80–1945, 5–80– 1955, 5–80–1965, 5–80–2010, 5–80– 2020, and 5–80–2140. ■ d. Adding an entry for Chapter 80, Section 5–80–2195, after the existing entry for 5–80–2190. ■ e. Revising the entries for Chapter 80, Sections 5–80–2200, 5–80–2210, 5–80– 2220, 5–80–2230, and 5–80–2240. The amendments read as follows: ■ § 52.2420 * Identification of plan. * * (c) * * * * * EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES State citation State effective date Title/subject * * * * 9 VAC 5, Chapter 80 * * Article 8 * * * * * * * Permits—Major Stationary Sources and Major Modifications Located in Prevention of Significant Deterioration Areas * Definitions ............................ 5–80–1625 ........ General ................................ * 5–80–1695 ........ * Exemptions .......................... * * 5–80–1915 ........ * 5–80–1925 ........ * Actions to combine permit terms and conditions. Actions to change permits ... * 5–80–1945 ........ * Minor permit amendments ... * 5–80–1955 ........ Significant amendment procedures. Reopening for cause ........... 5–80–1965 ........ * Article 9 Explanation [former SIP citation] Permits for Stationary Sources [Part VIII] * * 5–80–1615 ........ * * 7/23/09 7/23/09 7/23/09 7/23/09 7/23/09 7/23/09 7/23/09 7/23/09 * * * * 12/20/12 [Insert page number where the document begins]. 12/20/12 [Insert page number where the document begins]. * * * 12/20/12 [Insert page number where the document begins]. * * * 12/20/12 [Insert page number where the document begins]. 12/20/12 [Insert page number where the document begins]. * * * 12/20/12 [Insert page number where the document begins]. 12/20/12 [Insert page number where the document begins]. 12/20/12 [Insert page number where the document begins]. * * * * Revised 2 terms. Revised. * Revised. * New. Revised. * Revised. Revised. Revised. * Permits—Major Stationary Sources and Major Modifications Located in Nonattainment Areas or the Ozone Transport Region * 5–80–2010 ........ erowe on DSK2VPTVN1PROD with EPA approval date * Definitions ............................ 5–80–2020 ........ General ................................ VerDate Mar<15>2010 15:07 Dec 19, 2012 Jkt 229001 * PO 00000 7/23/09 7/23/09 Frm 00022 * * * 12/20/12 [Insert page number where the document begins]. 12/20/12 [Insert page number where the document begins]. Fmt 4700 Sfmt 4700 E:\FR\FM\20DER1.SGM 20DER1 * Revised 2 terms. Revised. 75383 Federal Register / Vol. 77, No. 245 / Thursday, December 20, 2012 / Rules and Regulations EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES—Continued State effective date State citation Title/subject * 5–80–2140 ........ * Exemptions .......................... * * 5–80–2195 ........ * Actions to combine permit terms and conditions. Actions to change permits ... * 5–80–2200 ........ 5–80–2210 ........ 5–80–2220 ........ 5–80–2230 ........ 5–80–2240 ........ * * 7/23/09 Significant amendment procedures. Reopening for cause ........... 7/23/09 * * 7/23/09 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R05–OAR–2009–0805; EPA–HQ– OAR–2009–0491; FRL–9763–3] Approval and Promulgation of Air Quality Implementation Plans; Illinois; Infrastructure SIP Requirements for the 2006 PM2.5 NAAQS; Revisions to FIPs To Reduce Interstate Transport of PM2.5 and Ozone; Correction Environmental Protection Agency (EPA). ACTION: Final rule; correcting amendment. AGENCY: This document corrects errors in the codification of final rules published on July 13, 2011, August 8, 2011, February 21, 2012, and October 29, 2012. The July 13, 2011, and October 29, 2012, actions pertain to State Implementation Plan (SIP) submissions by Illinois regarding the infrastructure requirements of the Clean Air Act (CAA) for the 1997 eight-hour ground level ozone national ambient air quality standards (NAAQS), the 1997 fine particle (PM2.5) NAAQS, and the 2006 24-hour PM2.5 NAAQS. The August 8, 2011, and February 21, 2012, actions pertain to Federal Implementation Plans (FIPs) to reduce interstate transport of PM2.5 and ozone. DATES: This correcting amendment is effective on December 20, 2012. SUMMARY: Jkt 229001 * 12/20/12 gins]. 12/20/12 gins]. 12/20/12 gins]. 12/20/12 gins]. 12/20/12 gins]. 12/20/12 gins]. New. [Insert page number where the document be- Revised. [Insert page number where the document be- Revised. [Insert page number where the document be- Revised. [Insert page number where the document be- Revised. [Insert page number where the document be- Revised. * Frm 00023 Fmt 4700 * Revised. * * [Insert page number where the document be- * Christos Panos, Environmental Engineer, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), U.S. Environmental Protection Agency, Region 5, Chicago, Illinois 60604, (312) 353–8328, or by email at panos.christos@epa.gov. SUPPLEMENTARY INFORMATION: On August 8, 2011, (76 FR 48208), EPA published FIPs to reduce interstate transport of PM2.5 and ozone. It codified the regulation, ‘‘Interstate pollutant transport provisions; What are the FIP requirements for decreases in emissions of nitrogen oxides?’’, at 40 CFR 52.745. In so doing, EPA had not realized that this section had already been reserved by a previous rulemaking action, titled ‘‘Section 110(a)(2) Infrastructure Requirements,’’ and created on July 13, 2011, (76 FR 41075). EPA attempted to correct this error on February 21, 2012, (77 FR 10324). What resulted, however, is that the interstate pollutant transport provision disappeared entirely. We are now correcting this error by codifying the provision titled ‘‘Section 110(a)(2) Infrastructure Requirements’’ at 40 CFR 52.745; and codifying the provision titled ‘‘Interstate pollutant transport provisions; What are the FIP requirements for decreases in emissions of nitrogen oxides?’’ at 40 CFR 52.731. As a result of this correction, the rulemaking action published on October 29, 2012, (77 FR 65478) is now codified at 40 CFR 52.745. Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, PO 00000 Explanation [former SIP citation] * * * 12/20/12 [Insert page number where the document begins]. FOR FURTHER INFORMATION CONTACT: BILLING CODE 6560–50–P 15:07 Dec 19, 2012 7/23/09 * [FR Doc. 2012–30585 Filed 12–19–12; 8:45 am] VerDate Mar<15>2010 7/23/09 7/23/09 * * 7/23/09 Administrative permit amendments. Minor permit amendments ... * erowe on DSK2VPTVN1PROD with EPA approval date Sfmt 4700 * * * unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. We have determined that there is good cause for making this rule final without prior proposal and opportunity for comment because we are merely correcting an incorrect citation in a previous action. Thus, notice and public procedure are unnecessary. We find that this constitutes good cause under 5 U.S.C. 553(b)(B). Statutory and Executive Order Reviews Under Executive Order (E.O.) 12866 (58 FR 51735, October 4, 1993), this action is not a ‘‘significant regulatory action’’ and is therefore 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)). Because the agency has made a ‘‘good cause’’ finding that this action is not subject to notice-and-comment requirements under the Administrative Procedures Act or any other statute as indicated in the Supplementary Information section above, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C 601 et seq), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104–4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This rule also does not have a E:\FR\FM\20DER1.SGM 20DER1

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 77, Number 245 (Thursday, December 20, 2012)]
[Rules and Regulations]
[Pages 75380-75383]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-30585]

[[Page 75380]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2011-0926; FRL-9763-4]

Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Permits for Major Stationary Sources and Major Modifications
Locating in Prevention of Significant Deterioration Areas and Permits
for Major Stationary Sources Locating in Nonattainment Areas or the
Ozone Transport Region

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).
These revisions allow the terms and conditions of various elements of
the preconstruction program in Virginia to be combined into a single
permit, establish limitations for issuance of Plantwide Applicability
Limits (PALs), provide clarification to the exemption to Virginia's
permitting rules regarding the use of alternate fuels and make minor
administrative amendments. This action is being taken under the Clean
Air Act (CAA).

DATES: This final rule is effective on January 22, 2013.

ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2011-0926. 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: Gerallyn Duke, (215) 814-2084, or by
email at duke.gerallyn@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

On September 7, 2012 (77 FR 55168), EPA published a notice of
proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR
proposed approval of amendments to Virginia's Prevention of Significant
Deterioration (PSD) and nonattainment New Source Review (NSR) programs
to allow the terms and conditions of various elements of the
preconstruction permit program in Virginia to be combined into a single
permit, establish limitations for issuance of Plantwide Applicability
Limits (PALs), and clarify exemptions to Virginia's permitting rules
regarding the use of alternate fuels. The formal SIP revision was
submitted by Virginia on September 27, 2010.
The SIP revision will allow preconstruction permits for major
stationary sources to be combined into one permit with certain
restrictions and conditions. Each action to combine permit terms and
conditions must include a statement referencing the origin of each term
or condition in the combined permit, its effective date and whether it
is state and/or Federally enforceable. All terms and conditions of
contributing permits must be included in the combined permit without
change, with certain exceptions, and the combined permit will supersede
the contributing permit.
In addition, the SIP revision establishes state operating permits
as the sole mechanism for issuing PAL permits. On December 31, 2002 (67
FR 80186), EPA published final rule changes to 40 CFR parts 51 and 52
regarding the CAA's PSD and nonattainment NSR programs that are
collectively known as NSR Reform. These changes included provisions
that would allow major stationary sources to comply with a PAL to avoid
having a significant emissions increase that triggers the requirements
of the major NSR program. The proposed SIP revision would limit
establishing PALs to state operating permits and no longer allow PALs
to be established through major or minor NSR permits.
In 2008, the Virginia General Assembly amended Va. Code Sec.
10.1322.4 to allow exemptions for alternative fuels and raw materials
from permit requirements. The SIP revision updates and restructures the
exemptions to ensure that there are no conflicts between the Virginia
Code and Federal regulations, including the SIP.

II. Summary of SIP Revision

This SIP revision consists of revisions to the VADEQ regulations at
9VAC5 Chapter 80, Article 8 (Permits for Major Stationary Sources and
Major Modifications Locating in Prevention of Significant Deterioration
Areas) and Article 9 (Permits for Major Stationary Sources and
Modifications Locating in Nonattainment Areas or the Ozone Transport
Region). The following regulations under Article 8 are revised: 5-80-
1615 (Definitions), 5-80-1625 (General), 5-80-1695 (Exemptions), 5-80-
1925 (Changes to permits), 5-80-1935 (Administrative permit
amendments), 5-80-1945 (Minor permit amendments), 5-80-1955
(Significant amendment procedures), and 5-80-1965 (Reopening for
cause). Under Article 9, Regulations 5-80-2010 (Definitions), 5-80-2020
(General), 5-80-2140 (Exemptions), 5-80-2200 (Changes to permits), 5-
80-2210 (Administrative permit amendments), 5-80-2220 (Minor permit
amendments), 5-80-2230 (Significant amendment procedures) and 5-80-2240
(Reopening for cause) are amended. Under Article 8, Regulation 5-80-
1915 (Actions to combine permit terms and conditions) is added and
under Article 9, Regulation 5-80-2195 (also called ``Actions to combine
permit terms and conditions'') is added.
EPA is approving Virginia's SIP submission dated September 27, 2010
that consists of the following actions that pertain to Virginia's PSD
and nonattainment NSR Programs: (1) Adding provisions to allow the
terms and conditions of the various elements of the NSR Program to be
combined into a single permit; (2) establishing state operating permits
as the sole mechanism for issuing PALs; (3) clarifying certain
exemptions from permitting for alternative fuels to ensure no conflict
with federal law and regulation; and (4) making minor administrative
amendments.

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

[[Page 75381]]

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 Llaw, 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 and nonattainment NSR programs 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.
Other specific requirements of the regulations 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.

IV. Final Action

EPA is approving the September 27, 2010 SIP submission pertaining
to Virginia's PSD and nonattainment NSR programs.

V. Statutory and Executive Order Reviews

A. General Requirements

Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (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 February 19, 2013. 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

[[Page 75382]]

regarding Virginia's PSD and NSR permit programs 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, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.

Dated: December 10, 2012.
Shawn M. Garvin,
Regional Administrator, Region III.

40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for 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 entries for Chapter 80, Sections 5-80-1615, 5-80-1625,
and 5-80-1695.
0
b. Adding an entry for Chapter 80, Section 5-80-1915, after the
existing entry for 5-80-1865.
0
c. Revising the entries for Chapter 80, Sections 5-80-1925, 5-80-1945,
5-80-1955, 5-80-1965, 5-80-2010, 5-80-2020, and 5-80-2140.
0
d. Adding an entry for Chapter 80, Section 5-80-2195, after the
existing entry for 5-80-2190.
0
e. Revising the entries for Chapter 80, Sections 5-80-2200, 5-80-2210,
5-80-2220, 5-80-2230, and 5-80-2240.
The amendments 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 SIP
date citation]
----------------------------------------------------------------------------------------------------------------

* * * * * * *
----------------------------------------------------------------------------------------------------------------
9 VAC 5, Chapter 80 Permits for Stationary Sources [Part VIII]
----------------------------------------------------------------------------------------------------------------

* * * * * * *
----------------------------------------------------------------------------------------------------------------
Article 8 Permits--Major Stationary Sources and Major Modifications Located in Prevention of Significant
Deterioration Areas
----------------------------------------------------------------------------------------------------------------

* * * * * * *
5-80-1615............... Definitions........ 7/23/09 12/20/12 [Insert page Revised 2 terms.
number where the
document begins].
5-80-1625............... General............ 7/23/09 12/20/12 [Insert page Revised.
number where the
document begins].

* * * * * * *
5-80-1695............... Exemptions......... 7/23/09 12/20/12 [Insert page Revised.
number where the
document begins].

* * * * * * *
5-80-1915............... Actions to combine 7/23/09 12/20/12 [Insert page New.
permit terms and number where the
conditions. document begins].
5-80-1925............... Actions to change 7/23/09 12/20/12 [Insert page Revised.
permits. number where the
document begins].

* * * * * * *
5-80-1945............... Minor permit 7/23/09 12/20/12 [Insert page Revised.
amendments. number where the
document begins].
5-80-1955............... Significant 7/23/09 12/20/12 [Insert page Revised.
amendment number where the
procedures. document begins].
5-80-1965............... Reopening for cause 7/23/09 12/20/12 [Insert page Revised.
number where the
document begins].

* * * * * * *
----------------------------------------------------------------------------------------------------------------
Article 9 Permits--Major Stationary Sources and Major Modifications Located in Nonattainment Areas or the Ozone
Transport Region
----------------------------------------------------------------------------------------------------------------

* * * * * * *
5-80-2010............... Definitions........ 7/23/09 12/20/12 [Insert page Revised 2 terms.
number where the
document begins].
5-80-2020............... General............ 7/23/09 12/20/12 [Insert page Revised.
number where the
document begins].

[[Page 75383]]

* * * * * * *
5-80-2140............... Exemptions......... 7/23/09 12/20/12 [Insert page Revised.
number where the
document begins].

* * * * * * *
5-80-2195............... Actions to combine 7/23/09 12/20/12 [Insert page New.
permit terms and number where the
conditions. document begins].
5-80-2200............... Actions to change 7/23/09 12/20/12 [Insert page Revised.
permits. number where the
document begins].
5-80-2210............... Administrative 7/23/09 12/20/12 [Insert page Revised.
permit amendments. number where the
document begins].
5-80-2220............... Minor permit 7/23/09 12/20/12 [Insert page Revised.
amendments. number where the
document begins].
5-80-2230............... Significant 7/23/09 12/20/12 [Insert page Revised.
amendment number where the
procedures. document begins].
5-80-2240............... Reopening for cause 7/23/09 12/20/12 [Insert page Revised.
number where the
document begins].

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

* * * * *
[FR Doc. 2012-30585 Filed 12-19-12; 8:45 am]
BILLING CODE 6560-50-P

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