Approval and Promulgation of Air Quality Implementation Plans; Virginia; Prevention of Significant Deterioration; Plantwide Applicability Limits for Greenhouse Gases, 72903-72906 [2015-29680]

Download as PDF Federal Register / Vol. 80, No. 225 / Monday, November 23, 2015 / Rules and Regulations May 12, 2014 SIP submittal. The revision incorporates PAL provisions for GHGs into Virginia’s PSD program. In a June 3, 2010 final rulemaking 40 CFR Part 52 action, EPA promulgated regulations [EPA–R03–OAR–2015–0274; FRL–9937–25– known as ‘‘the Tailoring Rule,’’ which Region 3] phased in permitting requirements for GHG emissions from stationary sources Approval and Promulgation of Air Quality Implementation Plans; Virginia; under the CAA PSD and title V Prevention of Significant Deterioration; permitting programs. See 75 FR 31514. For Step 1 of the Tailoring Rule, which Plantwide Applicability Limits for began on January 2, 2011, PSD or title Greenhouse Gases V requirements applied to sources of AGENCY: Environmental Protection GHG emissions only if the sources were Agency (EPA). subject to PSD or title V ‘‘anyway’’ due ACTION: Final rule. to their emissions of non-GHG pollutants. These sources are referred to SUMMARY: The Environmental Protection as ‘‘anyway sources.’’ Step 2 of the Agency (EPA) is approving a May 12, Tailoring Rule, which began on July 1, 2014 State Implementation Plan (SIP) 2011, applied the PSD and title V revision submitted for the permitting requirements under the CAA Commonwealth of Virginia by the to sources that were classified as major, Virginia Department of Environmental and, thus, required to obtain a permit, Quality (VADEQ). This revision adds based solely on their potential GHG Plantwide Applicability Limit (PAL) emissions and to modifications of provisions for Greenhouse Gases (GHGs) otherwise major sources that required a to Virginia’s Prevention of Significant PSD permit because they increased only Deterioration (PSD) program. This GHGs above applicable levels in the action is being taken under the Clean EPA regulations. Subsequently, on May Air Act (CAA). 13, 2011, EPA took final action to DATES: This final rule is effective on approve a revision to Virginia’s PSD December 23, 2015. SIP, incorporating preconstruction permitting requirements for major ADDRESSES: EPA has established a stationary sources and major docket for this action under Docket ID Number EPA–R03–OAR–2015–0274. All modifications of GHGs, consistent with the Federal PSD requirements at the documents in the docket are listed in time. See 76 FR 27898. the www.regulations.gov Web site. In a June 12, 2012 final rulemaking Although listed in the electronic docket, action entitled ‘‘Prevention of some information is not publicly Significant Deterioration and Title V available, i.e., confidential business Greenhouse Gas Tailoring Rule Step 3 information (CBI) or other information whose disclosure is restricted by statute. and GHG Plantwide Applicability Limits’’ 1 (hereafter, Tailoring Rule Step Certain other material, such as 3), EPA promulgated a number of copyrighted material, is not placed on streamlining measures intended to the Internet and will be publicly improve the administration of GHG PSD available only in hard copy form. permitting programs. Included in that Publicly available docket materials are rulemaking were provisions to allow available electronically through sources to obtain GHG PALs on a carbon www.regulations.gov or may be viewed during normal business hours at the Air dioxide equivalent (CO2e) 2 basis, rather Protection Division, U.S. Environmental than strictly on a mass basis. A PAL is an emissions limitation for a single Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania pollutant expressed in tons per year (tpy) that is enforceable as a practical 19103. Copies of the State submittal are matter and is established source-wide in available at the Virginia Department of accordance with specific criteria. See 40 Environmental Quality, 629 East Main CFR 52.21(aa)(2)(v). PALs offer an Street, Richmond, Virginia 23219. alternative method for determining FOR FURTHER INFORMATION CONTACT: major New Source Review (NSR) David Talley, (215) 814–2117, or by applicability: If a source can maintain email at talley.david@epa.gov. its overall emissions of the PAL SUPPLEMENTARY INFORMATION: pollutant below the PAL level, the source can make a change without I. Background triggering PSD review. Virginia’s May On June 5, 2015 (80 FR 32078), EPA published a notice of proposed 1 See 77 FR 41051. rulemaking (NPR) for the 2 CO e is defined as the mass of the specific GHG 2 Commonwealth of Virginia. In the NPR, (in tons), multiplied by its Global Warming Potential, as codified in 40 CFR part 98. EPA proposed approval of Virginia’s wgreen on DSK2VPTVN1PROD with RULES ENVIRONMENTAL PROTECTION AGENCY VerDate Sep<11>2014 13:22 Nov 20, 2015 Jkt 238001 PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 72903 12, 2014 submittal incorporates PAL provisions into Virginia’s PSD program, consistent with EPA’s Tailoring Rule Step 3. On June 23, 2014, the United States Supreme Court, in Utility Air Regulatory Group v. Environmental Protection Agency,3 issued a decision addressing the Tailoring Rule and the application of PSD permitting requirements to GHG emissions. The Supreme Court said that the EPA may not treat GHGs as an air pollutant for purposes of determining whether a source is a major source required to obtain a PSD permit. The Court also said that the EPA could continue to require that PSD permits, otherwise required based on emissions of pollutants other than GHGs, contain limitations on GHG emissions based on the application of Best Available Control Technology (BACT). The Supreme Court decision effectively upheld PSD permitting requirements for GHG emissions under Step 1 of the Tailoring Rule for ‘‘anyway sources’’ and invalidated PSD permitting requirements for Step 2 sources. In accordance with the Supreme Court decision, on April 10, 2015, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) issued an amended judgment vacating the regulations that implemented Step 2 of the Tailoring Rule, but not the regulations that implement Step 1 of the Tailoring Rule.4 The amended judgment preserves, without the need for additional rulemaking by the EPA, the application of the BACT requirement to GHG emissions from sources that are required to obtain a PSD permit based on emissions of pollutants other than GHGs (i.e., the ‘‘anyway’’ sources). The D.C. Circuit’s judgment vacated the regulations at issue in the litigation, including 40 CFR 51.166(b)(48)(v), ‘‘to the extent they require a stationary source to obtain a PSD permit if greenhouse gases are the only pollutant (i) that the source emits or has the potential to emit above the applicable major source thresholds, or (ii) for which there is a significant emissions increase from a modification.’’ 5 EPA may need to take additional steps to revise federal PSD rules in light of the Supreme Court decision and recent D.C. Circuit judgment. In addition, EPA anticipates that many states will revise their existing SIP-approved PSD programs. EPA is not expecting states to have revised their existing PSD program 3 See 134 S.Ct. 2427. for Responsible Regulation v. EPA, D.C. Cir., No. 09–1322, 06/26/20, judgment entered for No. 09–1322 on 04/10/2015. 5 Id. 4 Coalition E:\FR\FM\23NOR1.SGM 23NOR1 72904 Federal Register / Vol. 80, No. 225 / Monday, November 23, 2015 / Rules and Regulations wgreen on DSK2VPTVN1PROD with RULES regulations at this juncture. However, EPA is evaluating PSD program submissions to assure that the state’s program correctly addresses GHGs consistent with both decisions. Virginia’s currently approved PSD SIP continues to require that PSD permits (otherwise required based on emissions of pollutants other than GHGs) contain limitations on GHG emissions based on the application of BACT when sources emit or increase GHGs in the amount of 75,000 tpy, measured as CO2e. Although Virginia’s SIP may also currently contain provisions that are no longer necessary in light of the D.C. Circuit’s judgment or the Supreme Court decision, this does not prevent EPA from approving the submission addressed in this rule. This rulemaking action does not add any GHG permitting requirements that are inconsistent with either decision. Likewise, the GHG PAL provisions being approved in this action include some provisions that may no longer be appropriate in light of both the D.C. Circuit judgment and the Supreme Court decision. Since the Supreme Court has determined that sources and modifications may not be defined as ‘‘major’’ solely on the basis of the level of GHGs emitted or increased, PALs for GHGs may no longer have value in some situations where a source might have triggered PSD based on GHG emissions alone. However, PALs for GHGs may still have a role to play in determining whether a modification that triggers PSD for a pollutant other than GHGs should also be subject to BACT for GHGs. These provisions, like the other GHG provisions discussed previously, may be revised at some future time. However, these provisions do not add new requirements for sources or modifications that only emit or increase GHGs above the major source threshold or the 75,000 tpy GHG level in 40 CFR 52.21(b)(49)(iv). Rather, the PAL provisions provide increased flexibility to sources that wish to address their GHG emissions in a PAL. Since this flexibility may still be valuable to sources in at least one context described above, EPA is approving these provisions as a revision to the Virginia SIP at this juncture. II. Summary of SIP Revision The revision includes amendments to 9VAC5–85: ‘‘Permits for Stationary Sources of Pollutants Subject to Regulation.’’ Specifically, 9VAC5–85– 40: ‘‘Prevention of Significant Deterioration Area Permit Actions,’’ and 9VAC5–85–50: ‘‘Definitions’’ are being amended. Additionally, 9VAC5–85–55: ‘‘Actual plantwide applicability limits,’’ VerDate Sep<11>2014 13:22 Nov 20, 2015 Jkt 238001 is being added to the SIP. The amendments are consistent with the GHG PAL provisions of 40 CFR 52.21 as promulgated by EPA on July 12, 2012. See 77 FR 41072–41075. These provisions were effective in Virginia on March 13, 2014. Other specific requirements of the May 12, 2014 SIP submittal and the rationale for EPA’s approval are explained in the NPR and will not be restated here. No comments were received on the NPR. III. Final Action EPA is approving VADEQ’s May 12, 2014 SIP submittal as a revision to the Virginia SIP. IV. Incorporation by Reference In this rulemaking action, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the VADEQ rules regarding GHG PALs discussed in section II of this preamble. EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov, or they may be viewed at the appropriate EPA office (see the ADDRESSES section of this preamble for more information). V. General Information Pertaining to SIP Submittals From the Commonwealth of Virginia In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) ‘‘privilege’’ for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia’s legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia’s Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1–1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 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 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 E:\FR\FM\23NOR1.SGM 23NOR1 72905 Federal Register / Vol. 80, No. 225 / Monday, November 23, 2015 / Rules and Regulations any, state audit privilege or immunity law. VI. Statutory and Executive Order Reviews A. General Requirements Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA’s role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action: • Is not a ‘‘significant regulatory action’’ subject to review by the Office of Management and Budget under Executive 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). The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). B. Submission to Congress and the Comptroller General The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). action must be filed in the United States Court of Appeals for the appropriate circuit by January 22, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action pertaining to Virginia’s 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 28, 2015. Shawn M. Garvin, Regional Administrator, Region III. 40 CFR part 52 is amended as follows: PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: ■ Authority: 42 U.S.C. 7401 et seq. Subpart VV—Virginia 2. In § 52.2420, the table in paragraph (c) is amended by revising the entries under Chapter 85 for Sections 5–85–40 and 5–85–50 and adding an entry for Section 5–85–55 to read as follows: ■ § 52.2420 C. Petitions for Judicial Review Under section 307(b)(1) of the CAA, petitions for judicial review of this * Identification of plan. * * (c) * * * * * EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES State citation * * * 9 VAC 5, Chapter 85 wgreen on DSK2VPTVN1PROD with RULES State effective date Title/subject * * * EPA approval date * * VerDate Sep<11>2014 * * * Prevention of Significant Deterioration Area Permit Actions. 13:22 Nov 20, 2015 Jkt 238001 * Permits for Stationary Sources of Pollutants Subject to Regulation * Part III Prevention of Significant Deterioration Permit Actions 5–85–40 ............................ Explanation [former SIP citation] PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 03/13/14 11/23/15 [Insert Federal Register citation]. E:\FR\FM\23NOR1.SGM 23NOR1 * 72906 Federal Register / Vol. 80, No. 225 / Monday, November 23, 2015 / Rules and Regulations EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES—Continued State effective date State citation Title/subject 5–85–50 ............................ Definitions .................................................................... 03/13/14 5–85–55 ............................ Actual plantwide applicability limits (PALs) ................. 03/13/14 * * * * * * * * [FR Doc. 2015–29680 Filed 11–20–15; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 372 [EPA–HQ–TRI–2015–0011; FRL–9937–12– OEI] RIN 2025–AA41 Addition of 1-Bromopropane; Community Right-to-Know Toxic Chemical Release Reporting Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: The Environmental Protection Agency (EPA) is adding 1bromopropane to the list of toxic chemicals subject to reporting under section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA) of 1986 and section 6607 of the Pollution Prevention Act (PPA) of 1990. 1-Bromopropane has been classified by SUMMARY: * 11/23/15 [Insert Federal Register citation]. 11/23/15 [Insert Federal Register citation]. Added. * * * the National Toxicology Program in their 13th Report on Carcinogens as ‘‘reasonably anticipated to be a human carcinogen.’’ The EPA has determined that 1-bromopropane meets the EPCRA section 313(d)(2)(B) criteria because it can reasonably be anticipated to cause cancer in humans. DATES: This final rule is effective November 30, 2015, and shall apply for the reporting year beginning January 1, 2016 (reports due July 1, 2017). ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA–HQ–TRI–2015–0011. All documents in the docket are listed on the https://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available electronically through https:// www.regulations.gov. Explanation [former SIP citation] EPA approval date FOR FURTHER INFORMATION CONTACT: Daniel R. Bushman, Environmental Analysis Division, Office of Information Analysis and Access (2842T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: 202–566– 0743; fax number: 202–566–0677; email: bushman.daniel@epa.gov, for specific information on this notice. For general information on EPCRA section 313, contact the Emergency Planning and Community Right-to-Know Hotline, toll free at (800) 424–9346 (select menu option 3) or (703) 412–9810 in Virginia and Alaska or toll free, TDD (800) 553– 7672, https://www.epa.gov/superfund/ contacts/infocenter/. SUPPLEMENTARY INFORMATION: I. General Information A. Does this notice apply to me? You may be potentially affected by this action if you manufacture, process, or otherwise use 1-bromopropane. Potentially affected categories and entities may include, but are not limited to: Examples of potentially affected entities Industry ........................................... wgreen on DSK2VPTVN1PROD with RULES Category Facilities included in the following NAICS manufacturing codes (corresponding to SIC codes 20 through 39): 311*, 312*, 313*, 314*, 315*, 316, 321, 322, 323*, 324, 325*, 326*, 327, 331, 332, 333, 334*, 335*, 336, 337*, 339*, 111998*, 211112*, 212324*, 212325*, 212393*, 212399*, 488390*, 511110, 511120, 511130, 511140*, 511191, 511199, 512220, 512230*, 519130*, 541712*, or 811490*. *Exceptions and/or limitations exist for these NAICS codes. Facilities included in the following NAICS codes (corresponding to SIC codes other than SIC codes 20 through 39): 212111, 212112, 212113 (correspond to SIC 12, Coal Mining (except 1241)); or 212221, 212222, 212231, 212234, 212299 (correspond to SIC 10, Metal Mining (except 1011, 1081, and 1094)); or 221111, 221112, 221113, 221118, 221121, 221122, 221330 (Limited to facilities that combust coal and/or oil for the purpose of generating power for distribution in commerce) (corresponds to SIC 4911, 4931, and 4939, Electric Utilities); or 424690, 425110, 425120 (Limited to facilities previously classified in SIC 5169, Chemicals and Allied Products, Not Elsewhere Classified); or 424710 (corresponds to SIC 5171, Petroleum Bulk Terminals and Plants); or 562112 (Limited to facilities primarily engaged in solvent recovery services on a contract or fee basis (previously classified under SIC 7389, Business Services, NEC)); or 562211, 562212, 562213, 562219, 562920 (Limited to facilities regulated under the Resource Conservation and Recovery Act, subtitle C, 42 U.S.C. 6921 et seq.) (corresponds to SIC 4953, Refuse Systems). Federal facilities. Federal Government ....................... This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Some of the VerDate Sep<11>2014 13:22 Nov 20, 2015 Jkt 238001 entities listed in the table have exemptions and/or limitations regarding coverage, and other types of entities not listed in the table could also be affected. PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 To determine whether your facility would be affected by this action, you should carefully examine the applicability criteria in part 372 subpart E:\FR\FM\23NOR1.SGM 23NOR1

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 80, Number 225 (Monday, November 23, 2015)]
[Rules and Regulations]
[Pages 72903-72906]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-29680]

[[Page 72903]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2015-0274; FRL-9937-25-Region 3]

Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Prevention of Significant Deterioration; Plantwide
Applicability Limits for Greenhouse Gases

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a May
12, 2014 State Implementation Plan (SIP) revision submitted for the
Commonwealth of Virginia by the Virginia Department of Environmental
Quality (VADEQ). This revision adds Plantwide Applicability Limit (PAL)
provisions for Greenhouse Gases (GHGs) to Virginia's Prevention of
Significant Deterioration (PSD) program. This action is being taken
under the Clean Air Act (CAA).

DATES: This final rule is effective on December 23, 2015.

ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2015-0274. 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 electronically through www.regulations.gov or may be viewed
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.

SUPPLEMENTARY INFORMATION:

I. Background

On June 5, 2015 (80 FR 32078), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Virginia. In the NPR, EPA
proposed approval of Virginia's May 12, 2014 SIP submittal. The
revision incorporates PAL provisions for GHGs into Virginia's PSD
program.
In a June 3, 2010 final rulemaking action, EPA promulgated
regulations known as ``the Tailoring Rule,'' which phased in permitting
requirements for GHG emissions from stationary sources under the CAA
PSD and title V permitting programs. See 75 FR 31514. For Step 1 of the
Tailoring Rule, which began on January 2, 2011, PSD or title V
requirements applied to sources of GHG emissions only if the sources
were subject to PSD or title V ``anyway'' due to their emissions of
non-GHG pollutants. These sources are referred to as ``anyway
sources.'' Step 2 of the Tailoring Rule, which began on July 1, 2011,
applied the PSD and title V permitting requirements under the CAA to
sources that were classified as major, and, thus, required to obtain a
permit, based solely on their potential GHG emissions and to
modifications of otherwise major sources that required a PSD permit
because they increased only GHGs above applicable levels in the EPA
regulations. Subsequently, on May 13, 2011, EPA took final action to
approve a revision to Virginia's PSD SIP, incorporating preconstruction
permitting requirements for major stationary sources and major
modifications of GHGs, consistent with the Federal PSD requirements at
the time. See 76 FR 27898.
In a June 12, 2012 final rulemaking action entitled ``Prevention of
Significant Deterioration and Title V Greenhouse Gas Tailoring Rule
Step 3 and GHG Plantwide Applicability Limits'' \1\ (hereafter,
Tailoring Rule Step 3), EPA promulgated a number of streamlining
measures intended to improve the administration of GHG PSD permitting
programs. Included in that rulemaking were provisions to allow sources
to obtain GHG PALs on a carbon dioxide equivalent (CO2e) \2\
basis, rather than strictly on a mass basis. A PAL is an emissions
limitation for a single pollutant expressed in tons per year (tpy) that
is enforceable as a practical matter and is established source-wide in
accordance with specific criteria. See 40 CFR 52.21(aa)(2)(v). PALs
offer an alternative method for determining major New Source Review
(NSR) applicability: If a source can maintain its overall emissions of
the PAL pollutant below the PAL level, the source can make a change
without triggering PSD review. Virginia's May 12, 2014 submittal
incorporates PAL provisions into Virginia's PSD program, consistent
with EPA's Tailoring Rule Step 3.
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\1\ See 77 FR 41051.
\2\ CO2e is defined as the mass of the specific GHG
(in tons), multiplied by its Global Warming Potential, as codified
in 40 CFR part 98.
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On June 23, 2014, the United States Supreme Court, in Utility Air
Regulatory Group v. Environmental Protection Agency,\3\ issued a
decision addressing the Tailoring Rule and the application of PSD
permitting requirements to GHG emissions. The Supreme Court said that
the EPA may not treat GHGs as an air pollutant for purposes of
determining whether a source is a major source required to obtain a PSD
permit. The Court also said that the EPA could continue to require that
PSD permits, otherwise required based on emissions of pollutants other
than GHGs, contain limitations on GHG emissions based on the
application of Best Available Control Technology (BACT). The Supreme
Court decision effectively upheld PSD permitting requirements for GHG
emissions under Step 1 of the Tailoring Rule for ``anyway sources'' and
invalidated PSD permitting requirements for Step 2 sources.
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\3\ See 134 S.Ct. 2427.
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In accordance with the Supreme Court decision, on April 10, 2015,
the U.S. Court of Appeals for the District of Columbia Circuit (D.C.
Circuit) issued an amended judgment vacating the regulations that
implemented Step 2 of the Tailoring Rule, but not the regulations that
implement Step 1 of the Tailoring Rule.\4\ The amended judgment
preserves, without the need for additional rulemaking by the EPA, the
application of the BACT requirement to GHG emissions from sources that
are required to obtain a PSD permit based on emissions of pollutants
other than GHGs (i.e., the ``anyway'' sources). The D.C. Circuit's
judgment vacated the regulations at issue in the litigation, including
40 CFR 51.166(b)(48)(v), ``to the extent they require a stationary
source to obtain a PSD permit if greenhouse gases are the only
pollutant (i) that the source emits or has the potential to emit above
the applicable major source thresholds, or (ii) for which there is a
significant emissions increase from a modification.'' \5\
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\4\ Coalition for Responsible Regulation v. EPA, D.C. Cir., No.
09-1322, 06/26/20, judgment entered for No. 09-1322 on 04/10/2015.
\5\ Id.
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EPA may need to take additional steps to revise federal PSD rules
in light of the Supreme Court decision and recent D.C. Circuit
judgment. In addition, EPA anticipates that many states will revise
their existing SIP-approved PSD programs. EPA is not expecting states
to have revised their existing PSD program

[[Page 72904]]

regulations at this juncture. However, EPA is evaluating PSD program
submissions to assure that the state's program correctly addresses GHGs
consistent with both decisions.
Virginia's currently approved PSD SIP continues to require that PSD
permits (otherwise required based on emissions of pollutants other than
GHGs) contain limitations on GHG emissions based on the application of
BACT when sources emit or increase GHGs in the amount of 75,000 tpy,
measured as CO2e. Although Virginia's SIP may also currently
contain provisions that are no longer necessary in light of the D.C.
Circuit's judgment or the Supreme Court decision, this does not prevent
EPA from approving the submission addressed in this rule. This
rulemaking action does not add any GHG permitting requirements that are
inconsistent with either decision.
Likewise, the GHG PAL provisions being approved in this action
include some provisions that may no longer be appropriate in light of
both the D.C. Circuit judgment and the Supreme Court decision. Since
the Supreme Court has determined that sources and modifications may not
be defined as ``major'' solely on the basis of the level of GHGs
emitted or increased, PALs for GHGs may no longer have value in some
situations where a source might have triggered PSD based on GHG
emissions alone. However, PALs for GHGs may still have a role to play
in determining whether a modification that triggers PSD for a pollutant
other than GHGs should also be subject to BACT for GHGs. These
provisions, like the other GHG provisions discussed previously, may be
revised at some future time. However, these provisions do not add new
requirements for sources or modifications that only emit or increase
GHGs above the major source threshold or the 75,000 tpy GHG level in 40
CFR 52.21(b)(49)(iv). Rather, the PAL provisions provide increased
flexibility to sources that wish to address their GHG emissions in a
PAL. Since this flexibility may still be valuable to sources in at
least one context described above, EPA is approving these provisions as
a revision to the Virginia SIP at this juncture.

II. Summary of SIP Revision

The revision includes amendments to 9VAC5-85: ``Permits for
Stationary Sources of Pollutants Subject to Regulation.'' Specifically,
9VAC5-85-40: ``Prevention of Significant Deterioration Area Permit
Actions,'' and 9VAC5-85-50: ``Definitions'' are being amended.
Additionally, 9VAC5-85-55: ``Actual plantwide applicability limits,''
is being added to the SIP. The amendments are consistent with the GHG
PAL provisions of 40 CFR 52.21 as promulgated by EPA on July 12, 2012.
See 77 FR 41072-41075. These provisions were effective in Virginia on
March 13, 2014. Other specific requirements of the May 12, 2014 SIP
submittal and the rationale for EPA's approval are explained in the NPR
and will not be restated here. No comments were received on the NPR.

III. Final Action

EPA is approving VADEQ's May 12, 2014 SIP submittal as a revision
to the Virginia SIP.

IV. Incorporation by Reference

In this rulemaking action, EPA is finalizing regulatory text that
includes incorporation by reference. In accordance with requirements of
1 CFR 51.5, the EPA is finalizing the incorporation by reference of the
VADEQ rules regarding GHG PALs discussed in section II of this
preamble. EPA has made, and will continue to make, these documents
generally available electronically through www.regulations.gov, or they
may be viewed at the appropriate EPA office (see the ADDRESSES section
of this preamble for more information).

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

In 1995, Virginia adopted legislation that provides, subject to
certain conditions, for an environmental assessment (audit)
``privilege'' for voluntary compliance evaluations performed by a
regulated entity. The legislation further addresses the relative burden
of proof for parties either asserting the privilege or seeking
disclosure of documents for which the privilege is claimed. Virginia's
legislation also provides, subject to certain conditions, for a penalty
waiver for violations of environmental laws when a regulated entity
discovers such violations pursuant to a voluntary compliance evaluation
and voluntarily discloses such violations to the Commonwealth and takes
prompt and appropriate measures to remedy the violations. Virginia's
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and
information about the content of those documents that are the product
of a voluntary environmental assessment. The Privilege Law does not
extend to documents or information that: (1) Are generated or developed
before the commencement of a voluntary environmental assessment; (2)
are prepared independently of the assessment process; (3) demonstrate a
clear, imminent and substantial danger to the public health or
environment; or (4) are required by law.
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

[[Page 72905]]

any, state audit privilege or immunity law.

VI. Statutory and Executive Order Reviews

A. General Requirements

Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive 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).
The SIP is not approved to apply on any Indian reservation land as
defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian
tribe has demonstrated that a tribe has jurisdiction. In those areas of
Indian country, the rule does not have tribal implications and will not
impose substantial direct costs on tribal governments or preempt tribal
law as specified by Executive Order 13175 (65 FR 67249, November 9,
2000).

B. Submission to Congress and the Comptroller General

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

C. Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by January 22, 2016. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action pertaining to Virginia's 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 28, 2015.
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 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 entries under Chapter 85 for Sections 5-85-40 and 5-85-50 and
adding an entry for Section 5-85-55 to read as follows:

Sec. 52.2420 Identification of plan.

* * * * *
(c) * * *

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

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

* * * * * * *
----------------------------------------------------------------------------------------------------------------
Part III Prevention of Significant Deterioration Permit Actions
----------------------------------------------------------------------------------------------------------------
5-85-40........................ Prevention of 03/13/14 11/23/15 [Insert
Significant Federal Register
Deterioration Area citation].
Permit Actions.

[[Page 72906]]

5-85-50........................ Definitions............ 03/13/14 11/23/15 [Insert
Federal Register
citation].
5-85-55........................ Actual plantwide 03/13/14 11/23/15 [Insert Added.
applicability limits Federal Register
(PALs). citation].

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

* * * * *
[FR Doc. 2015-29680 Filed 11-20-15; 8:45 am]
BILLING CODE 6560-50-P

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