Approval and Promulgation of Air Quality Implementation Plans; Virginia; Major New Source Review, 18272-18275 [2017-07820]
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Federal Register / Vol. 82, No. 73 / Tuesday, April 18, 2017 / Proposed Rules
Authority: 42 U.S.C. 7401 et seq.
Dated: March 2, 2017.
Cecil Rodrigues,
Acting Regional Administrator, Region III.
Dated: March 1, 2017.
Catherine McCabe,
Acting Regional Administrator, Region II.
[FR Doc. 2017–07826 Filed 4–17–17; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2016–0052; FRL–9961–50Region 3]
Approval and Promulgation of Air
Quality Implementation Plans; Virginia;
Major New Source Review
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
revisions to the Commonwealth of
Virginia state implementation plan
(SIP). The revisions amend Virginia’s
major source New Source Review (NSR)
regulations to make them consistent
with the federal program. EPA is
proposing to approve these revisions to
the Virginia SIP in accordance with the
requirements of the Clean Air Act
(CAA).
DATES: Written comments must be
received on or before May 18, 2017.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R03–
OAR–2016–0052 at https://
www.regulations.gov, or via email to
miller.linda@epa.gov. For comments
submitted at Regulations.gov, follow the
online instructions for submitting
comments. Once submitted, comments
cannot be edited or removed from
Regulations.gov. For either manner of
submission, EPA may publish any
comment received to its public docket.
Do not submit electronically any
information you consider to be
confidential business information (CBI)
or other information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
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SUMMARY:
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discussion of all points you wish to
make. EPA will generally not consider
comments or comment contents located
outside of the primary submission (i.e.
on the web, cloud, or other file sharing
system). For additional submission
methods, please contact the person
identified in the ‘‘For Further
Information Contact’’ section. For the
full EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
David Talley, (215) 814–2117, or by
email at talley.david@epa.gov.
SUPPLEMENTARY INFORMATION:
the preconstruction permit requirements
under VADEQ’s major NSR permit
program. The revision affects sources
subject to VADEQ’s Prevention of
Significant Deterioration (PSD) program,
which applies in areas which are in
attainment with (or unclassifiable for)
the NAAQS, as well as affecting sources
subject to its nonattainment NSR permit
program, applicable in areas not in
attainment with the NAAQS. By letter
dated March 1, 2017, VADEQ officially
withdrew a small and specific portion of
the October 16, 2015 submittal from
consideration for approval into the
Virginia SIP. A copy of the letter has
been included in the docket for this
action. Further discussion of the
withdrawal is provided in section II.A
of this notice.
I. Background
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Ozone, Incorporation
by reference, Intergovernmental
relations, Reporting and recordkeeping
requirements.
II. Summary of SIP Revision and EPA
Analysis
Generally, the October 16, 2015 SIP
submittal revision (as amended March
1, 2017) (hereinafter referred to as the
2015 NSR SIP Revision) is intended to
make the Virginia Administrative Code
regulations at 9VAC5 consistent with
the federal NSR program at 40 CFR
51.165 and 51.166. The specific changes
to 9VAC5 are intended to: (1) Allow the
use of a 10-year lookback period to
calculate pre-change emissions for
sources other than electric utility steam
generating units (EGUs); (2) Allow the
use of different lookback periods for
different regulated NSR pollutants; (3)
Extend the effective period for
plantwide applicability limits (PALs) to
10 years; and, (4) Allow replacement
units to be treated as existing units, and
thus provide the ability to use baseline
actual and projected actual emissions
when determining applicability.
Additionally, there are a number of
minor changes which are strictly
administrative in nature, consisting of
small grammatical revisions, or renumbering. EPA is proposing to approve
VADEQ’s 2015 NSR SIP Revision as a
revision to the Virginia SIP because it
meets the federal requirements of 40
CFR 51.165 and 51.165, and CAA
sections 110(a) and 173. Additionally,
the revisions are in accordance with
section 110(l) of the CAA because they
will not interfere with any applicable
requirement concerning attainment and
reasonable further progress, or any other
applicable CAA requirement.
The CAA’s NSR programs are
preconstruction review and permitting
programs applicable to new and
modified stationary sources of air
pollutants regulated under the CAA.
The NSR programs of the CAA include
a combination of air quality planning
and air pollution control technology
program requirements. Briefly, section
109 of the CAA requires EPA to
promulgate primary national ambient
air quality standards (NAAQS) to
protect public health and secondary
NAAQS to protect public welfare. Once
EPA sets those standards, states must
develop, adopt, and submit to EPA for
approval a SIP that contains emissions
limitations and other control measures
to attain and maintain the NAAQS.
Pursuant to section 110, each SIP is
required to contain a preconstruction
review program for the construction and
modification of any stationary source of
air pollution to assure that the NAAQS
are achieved and maintained; to protect
areas of clean air; to protect air qualityrelated values (such as visibility) in
national parks and other areas; to assure
that appropriate emissions controls are
applied; to maximize opportunities for
economic development consistent with
the preservation of clean air resources;
and, to ensure that any decision to
increase air pollution is made only after
full public consideration of the
consequences of the decision. Section
172 of the CAA requires a permit
program in areas which are not attaining
the NAAQS, and section 173 provides
the specific requirements for that permit
program.
On October 16, 2015, the Virginia
Department of Environmental Quality
(VADEQ), on behalf of the
Commonwealth of Virginia, submitted a
formal revision to the Virginia SIP. The
SIP revision consists of amendments to
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A. Baseline Actual Emissions
NSR applicability is determined by
comparing the pre-change emissions of
the project to the post-change emissions
and determining whether the net
increase is ‘‘significant.’’ For new units,
pre-change (baseline) emissions are
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Federal Register / Vol. 82, No. 73 / Tuesday, April 18, 2017 / Proposed Rules
zero. For modified units, sources must
calculate baseline actual emissions
(BAE). For sources other than EGUs, the
federal PSD and nonattainment NSR
regulations provide for the calculation
of BAE using ‘‘. . . the average rate, in
tons per year, at which the emissions
unit actually emitted the pollutant
during any consecutive 24-month
period selected by the owner or operator
within the 10-year period immediately
preceding either the date the owner or
operator begins actual construction of
the project, or the date a complete
permit application is received by the
reviewing authority . . .’’ See 40 CFR
51.165(a)(1)(xxxv)(B) and
51.166(b)(47)(ii). VADEQ’s currently
approved BAE definitions, codified at
9VAC5–80 sections 1615C (PSD) and
2010C (nonattainment NSR), provide for
a 5-year lookback period. The 2015 NSR
SIP Revision includes VADEQ’s revised
definitions of BAE to provide for a 10year lookback period for non EGUs,
consistent with the federal counterpart.
When EPA originally approved the 5year lookback into VADEQ’s
nonattainment NSR and PSD programs,
limited approval was granted. See 73 FR
62893, 62897 (October 22, 2008). The
previous definitions of BAE at 9VAC5–
80 sections 1615C and 2010C in
VADEQ’s June 27, 2008 SIP submittals
included the 5-year lookback which
EPA found approvable, despite being
different from the federal lookback
period. However, VADEQ’s regulations
at the time in sections 1615C and 2010C
also included provisions for the use of
a different time period to calculate BAE
if it was found to be more representative
of normal operations. In our October 22,
2008 final rulemaking notice, EPA
raised concerns that this provision
could allow for the use of a lookback
period that extended beyond the ten
years allowed by the federal programs
for PSD and NSR. However, EPA noted
that because VADEQ had affirmed that
it was not its intention to extend the
lookback period beyond ten years, a
limited approval was justified. See 73
FR at 62898. In VADEQ’s 2015 NSR SIP
Revision submittal, the provision
allowing for the use of a different
lookback period if it was found to be
more representative of normal
operations was struck from the
definition of BAE at 9VAC5–80 section
1615C, making it consistent with the
federal counterpart. However, that
provision was inadvertently left in the
definition of BAE in the version of
9VAC5–80 section 2010C for NSR. By
letter dated March 1, 2017, VADEQ
officially withdrew from EPA’s
consideration for inclusion into the SIP
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the portion of the definition of BAE at
section 2010C stating, ‘‘The board will
allow the use of another time period
upon a determination that it is more
representative of normal source
operation.’’ Thus, EPA finds the revised
definition of BAE at 9VAC5–80 section
2010C (with the provision for a different
lookback period stricken) fully
approvable as the definition is
consistent with federal CAA
requirements. EPA expects that the
sentence withdrawn from the SIP
submittal will be removed from the
Virginia Code as soon as practicable as
Virginia affirmed in its March 1, 2017
letter, and that VADEQ will implement
its NSR program consistent with the
approved SIP and the federal
requirements for NSR in the interim.
With this approval, EPA would also
remove its prior limited approval for
these regulations.
Finally, the federal requirement for
calculating BAE for PSD and NSR
provide for the use of different 24month periods for different regulated
NSR pollutants. See 40 CFR
51.165(a)(1)(xxxv)(B)(4) and
51.166(b)(47)(ii)(c). Under VADEQ’s
currently SIP-approved BAE definitions
at 9VAC5–80 sections 1615C and 2010C,
and 9VAC5–85 section 50, sources were
required to use the same 24-month
period for all regulated NSR pollutants.
VADEQ has revised these provisions to
allow for the use of different 24-month
periods for different regulated NSR
pollutants for both PSD and NSR and
has submitted these revised definitions
in 9VAC5–80 sections 1615C and 2010C
and 9VAC5–85 section 50 in its 2015
NSR SIP Revision to be consistent with
the federal requirements relating to
different lookback periods for different
regulated NSR pollutants. Because these
revisions are consistent with federal
definitions in 40 CFR 51.165 and 51.166
for using different 24-month periods for
different regulated NSR pollutants, EPA
finds these additional revisions in
9VAC5–80 sections 1615C and 2010C
and 9VAC5–85 section 50 approvable in
accordance with CAA requirements.
B. Plantwide Applicability Limits (PALs)
Federal requirements for PALs
include an effective period of ten years
for the plantwide permit.1 See 40 CFR
1 A PAL is a voluntary permit option that
provides the ability to manage facility-wide
emissions without triggering major NSR review.
The flexibility provided under a PAL facilitates the
ability to respond rapidly to changing market
conditions while enhancing the environmental
protection afforded under the program. If facility
emissions remain below a plantwide actual
emissions cap (that is, an actuals PAL), then a
facility can avoid major NSR permitting process
when making alterations to the facility or
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51.165(f) et seq and 51.166(w) et seq.
VADEQ’s currently-SIP approved
regulations only provided for a 5-year
effective period for such plantwide
permits. The 2015 NSR SIP Revision
includes amended versions of 9VAC–5–
80 sections 1615C, 1865C(1)(f), 2010C,
and 2144C(1)(f), as well as 9VAC5–85–
50, to provide for a PAL effective period
of ten years, consistent with the federal
regulations providing for a ten-year PAL
effective period. In addition, the 2015
NSR SIP Revision includes amended
versions of 9VAC5–80 sections 1865E
and 2144E and 9VAC5–85–55 to allow
for the use of different 24-month periods
for different regulated NSR pollutants
when establishing PALs, consistent with
the discussion in Section II.A of this
notice. Because these amended
regulations for PAL effective period and
baseline calculations are now consistent
with federal requirements for PALs in
40 CFR 51.165 and 51.166, EPA finds
these amended provisions approvable
for the Virginia SIP.
C. Replacement Units
Finally, the 2015 NSR SIP Revision
submittal adds definitions of
‘‘replacement unit,’’ and amends the
definitions of ‘‘emissions unit,’’ under
9VAC5–80 sections 1615C and 2010C
and 9VAC5–85 section 50. The effect of
these revisions is to allow replacement
units to be treated as existing units
when calculating pre- and post-change
emissions for purposes of determining
NSR applicability. VADEQ’s definitions
of ‘‘replacement unit’’ are consistent
with their federal counterparts at 40
CFR 51.165(a)(1)(xxi) and 51.166(b)(32).
VADEQ’s amended definitions of
‘‘emissions unit’’ are now consistent
with their federal counterparts at 40
CFR 51.165(a)(1)(vii) and 51.166(b)(7),
as is VADEQ’s approach to calculating
pre- and post-change emissions for
replacement units. Thus, EPA finds
these new and amended provisions in
the 2015 NSR SIP Revision approvable.
EPA finds the revisions to 9VAC5–80
sections 1615, 1865, 2010, and 2144 and
9 VAC5–85 sections 50 and 55
(including the changes discussed herein
as well as the minor administrative
changes for grammatical and numbering
consistency) consistent with CAA
section 110(l). None of the revisions
interfere with any applicable
requirement concerning attainment of
any NAAQS nor interfere with
reasonable further progress or any other
applicable requirement of the CAA. As
individual emissions units that would otherwise
trigger NSR permitting. In return for this flexibility,
facilities must monitor emissions from all emissions
units under the PAL in addition to other
recordkeeping and reporting requirements.
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described in this rulemaking, the
revisions to the Virginia Code in the
2015 NSR SIP Revision are consistent
with federal requirements for PSD and
NSR in 40 CFR 51.165 and 51.166.
Because the revisions are consistent
with federal requirements for PSD and
NSR permitting programs which permit
construction and modifications in
accordance with permitting and
emission limitation requirements and
address definitions for BAE and PAL
effective periods, EPA does not expect
any interference with the NAAQS from
these revisions.
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III. Proposed Action
EPA’s review of VADEQ’s 2015 NSR
SIP Revision submittal indicates that it
is consistent with the CAA and all of its
implementing regulations. Therefore,
EPA is proposing to approve the
October 16, 2015 submittal, as amended
on March 1, 2017, as a revision to the
Virginia SIP. EPA is soliciting public
comments on the issues discussed in
this document. These comments will be
considered before taking final action.
IV. General Information Pertaining to
SIP Submittals From the
Commonwealth of Virginia
In 1995, Virginia adopted legislation
that provides, subject to certain
conditions, for an environmental
assessment (audit) ‘‘privilege’’ for
voluntary compliance evaluations
performed by a regulated entity. The
legislation further addresses the relative
burden of proof for parties either
asserting the privilege or seeking
disclosure of documents for which the
privilege is claimed. Virginia’s
legislation also provides, subject to
certain conditions, for a penalty waiver
for violations of environmental laws
when a regulated entity discovers such
violations pursuant to a voluntary
compliance evaluation and voluntarily
discloses such violations to the
Commonwealth and takes prompt and
appropriate measures to remedy the
violations. Virginia’s Voluntary
Environmental Assessment Privilege
Law, Va. Code Sec. 10.1–1198, provides
a privilege that protects from disclosure
documents and information about the
content of those documents that are the
product of a voluntary environmental
assessment. The Privilege Law does not
extend to documents or information
that: (1) Are generated or developed
before the commencement of a
voluntary environmental assessment; (2)
are prepared independently of the
assessment process; (3) demonstrate a
clear, imminent and substantial danger
to the public health or environment; or
(4) are required by law.
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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 § 10.1–1198, precludes
granting a privilege to documents and
information ‘‘required by law,’’
including documents and information
‘‘required by federal law to maintain
program delegation, authorization or
approval,’’ since Virginia must ‘‘enforce
federally authorized environmental
programs in a manner that is no less
stringent than their federal counterparts.
. . . ’’ The opinion concludes that
‘‘[r]egarding § 10.1–1198, therefore,
documents or other information needed
for civil or criminal enforcement under
one of these programs could not be
privileged because such documents and
information are essential to pursuing
enforcement in a manner required by
federal law to maintain program
delegation, authorization or approval.’’
Virginia’s Immunity law, Va. Code Sec.
10.1–1199, provides that ‘‘[t]o the extent
consistent with requirements imposed
by federal law,’’ any person making a
voluntary disclosure of information to a
state agency regarding a violation of an
environmental statute, regulation,
permit, or administrative order is
granted immunity from administrative
or civil penalty. The Attorney General’s
January 12, 1998 opinion states that the
quoted language renders this statute
inapplicable to enforcement of any
federally authorized programs, since
‘‘no immunity could be afforded from
administrative, civil, or criminal
penalties because granting such
immunity would not be consistent with
federal law, which is one of the criteria
for immunity.’’
Therefore, EPA has determined that
Virginia’s Privilege and Immunity
statutes will not preclude the
Commonwealth from enforcing its NSR
program consistent with the federal
requirements. In any event, because
EPA has also determined that a state
audit privilege and immunity law can
affect only state enforcement and cannot
have any impact on federal enforcement
authorities, EPA may at any time invoke
its authority under the CAA, including,
for example, sections 113, 167, 205, 211
or 213, to enforce the requirements or
prohibitions of the state plan,
independently of any state enforcement
effort. In addition, citizen enforcement
under section 304 of the CAA is
likewise unaffected by this, or any, state
audit privilege or immunity law.
V. Incorporation by Reference
In this proposed rule, EPA is
proposing to include in a final EPA rule
regulatory text that includes
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incorporation by reference. In
accordance with requirements of 1 CFR
51.5, EPA is proposing to incorporate by
reference the VADEQ regulations
regarding definition and permitting
requirements discussed in Section II of
this notice. EPA has made, and will
continue to make, these materials
generally available through https://
www.regulations.gov and/or at the EPA
Region III Office (please contact the
person identified in the ‘‘For Further
Information Contact’’ section of this
preamble for more information).
VI. Statutory and Executive Order
Reviews
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 proposed action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• 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
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• 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, pertaining to
Virginia’s preconstruction permitting
requirements 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).
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.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 21, 2017.
Cecil Rodrigues,
Acting Regional Administrator, Region III.
[FR Doc. 2017–07820 Filed 4–17–17; 8:45 am]
BILLING CODE 6560–50–P
SURFACE TRANSPORTATION BOARD
49 CFR Chapter X
[Docket No. EP 664 (Sub-No. 3)]
Revisions to the Cost-of-Capital
Composite Railroad Criteria
Surface Transportation Board.
Notice of proposed rulemaking.
AGENCY:
ACTION:
To better reflect the current
marketplace, the Surface Transportation
Board (Board) is proposing to update
one of the screening criteria used to
create the ‘‘composite railroad’’ for the
Board’s annual cost-of-capital
determination. Specifically, the Board
proposes that one of its screening
criteria now require a company’s stock
to be listed on either the New York
Stock Exchange (NYSE) or the Nasdaq
Stock Market (NASDAQ), rather than be
listed on either the NYSE or American
Stock Exchange (AMEX), as the AMEX
is no longer in existence.
DATES: Comments are due by May 18,
2017. Reply comments are due by June
19, 2017.
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Comments and replies may
be submitted either via the Board’s efiling format or in the traditional paper
format. Any person using e-filing should
attach a document and otherwise
comply with the instructions at the E–
FILING link on the Board’s Web site, at
https://www.stb.gov. Any person
submitting a filing in the traditional
paper format should send an original
and 10 copies to: Surface Transportation
Board, Attn: Docket No. EP 664 (SubNo. 3), 395 E Street SW., Washington,
DC 20423–0001. Copies of written
comments and replies will be available
for viewing and self-copying at the
Board’s Public Docket Room, Room 131,
and will be posted to the Board’s Web
site.
FOR FURTHER INFORMATION CONTACT:
Amy C. Ziehm, (202) 245–0391.
Assistance for the hearing impaired is
available through the Federal
Information Relay Service (FIRS) at
(800) 877–8339.
SUPPLEMENTARY INFORMATION: One of the
Board’s regulatory responsibilities is to
determine annually the railroad
industry’s cost of capital. The cost-ofcapital figure represents the Board’s
estimate of the average rate of return
needed to persuade investors to provide
capital to the freight rail industry. This
figure is an essential component of
many of the Board’s core regulatory
responsibilities.
The Board calculates the cost of
capital as the weighted average of the
cost of debt and the cost of equity, with
the weights determined by the railroad
industry’s capital structure (the fraction
of capital from debt or equity on a
market-value basis). See Methodology to
be Employed in Determining R.R.
Indus.’s Cost of Capital, EP 664, slip op.
at 6 (STB served Jan. 17, 2008). The
Board determines the railroad industry’s
cost of capital for a ‘‘composite
railroad,’’ which is based on data from
a sample of railroads. Pursuant to
Railroad Cost of Capital—1984, 1
I.C.C.2d 989 (1985), the sample includes
all railroads that meet the following
criteria:
—The company is a Class I line-haul
railroad; 1
—If the Class I railroad is controlled by
another company, the controlling
company is primarily a railroad
company and is not already included
in the study frame; 2
ADDRESSES:
1 For the definition of a Class I railroad, see fn.
4, infra.
2 A company is considered to be primarily in the
railroad business if at least 50% of its total assets
are devoted to railroad operations. Railroad Cost of
Capital—1984, 1 I.C.C.2d at 1003–04.
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—The company’s bonds are rated at
least BBB by Standard & Poor’s and
Baa by Moody’s;
—The company’s stock is listed on
either the NYSE or the AMEX; and
—The company has paid dividends
throughout the review year. 1 I.C.C.2d
at 1003–04; see also R.R. Cost of
Capital—2015, EP 558 (Sub-No. 19),
slip op. at 3 (STB served Aug. 5,
2016).
Proposed Rule
The Board proposes to revise the
fourth screening criterion, which
currently requires that a company’s
stock be listed on either the NYSE or the
AMEX. The AMEX was acquired in
October 2008 by NYSE Euronext, a now
defunct Euro-American multinational
financial services corporation that
operated multiple securities exchanges.
As a result, the Board’s screening
criteria used to determine the composite
railroad should be updated to reflect the
current marketplace. The Board
therefore proposes that the fourth
screening criterion be amended to
remove the AMEX listing and instead
require that a company’s stock be listed
on either the NYSE or the NASDAQ, the
primary competitor to the NYSE.
The NASDAQ is a robust and
reputable stock exchange, and the Board
believes that it is a suitable replacement
for the AMEX in the cost-of-capital
determination. The NASDAQ is the
world’s second-largest stock exchange,
behind only the NYSE, and the NYSE
and NASDAQ combined account for the
major portion of all equities trading in
North America. When the Board’s
predecessor adopted the fourth
screening criterion, it did so to ‘‘insure
the availability of stock price data.’’
Railroad Cost of Capital—1984, 1
I.C.C.2d at 1004. By requiring applicable
carriers to trade on either the NYSE or
the NASDAQ, the Board would ensure
the availability of stock price data for
use in the Board’s computation of the
rail industry’s cost of capital.3
Therefore, the Board seeks public
comment on its proposal to require the
listing of a company’s stock on either
the NYSE or the NASDAQ for a railroad
to be included in the composite group
to determine the industry’s cost of
capital.
Regulatory Flexibility Act. The
Regulatory Flexibility Act of 1980
3 For its 2015 cost of capital calculation, the
Board waived its requirement that a company’s
stock be listed on either the NYSE or the AMEX,
noting that CSX Corporation (CSX) transferred its
stock exchange listing from the NYSE to the
NASDAQ in 2015. R.R. Cost of Capital—2015, EP
558 (Sub-No. 19), slip op. at 2 n.5 (STB served Mar.
10, 2016).
E:\FR\FM\18APP1.SGM
18APP1
]]>Agencies
[Federal Register Volume 82, Number 73 (Tuesday, April 18, 2017)]
[Proposed Rules]
[Pages 18272-18275]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-07820]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2016-0052; FRL-9961-50-Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Major New Source Review
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve revisions to the Commonwealth of Virginia state implementation
plan (SIP). The revisions amend Virginia's major source New Source
Review (NSR) regulations to make them consistent with the federal
program. EPA is proposing to approve these revisions to the Virginia
SIP in accordance with the requirements of the Clean Air Act (CAA).
DATES: Written comments must be received on or before May 18, 2017.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2016-0052 at https://www.regulations.gov, or via email to
miller.linda@epa.gov. For comments submitted at Regulations.gov, follow
the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from Regulations.gov. For either
manner of submission, EPA may publish any comment received to its
public docket. Do not submit electronically any information you
consider to be confidential business information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e. on the web, cloud, or other file sharing
system). For additional submission methods, please contact the person
identified in the ``For Further Information Contact'' section. For the
full EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit https://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: David Talley, (215) 814-2117, or by
email at talley.david@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
The CAA's NSR programs are preconstruction review and permitting
programs applicable to new and modified stationary sources of air
pollutants regulated under the CAA. The NSR programs of the CAA include
a combination of air quality planning and air pollution control
technology program requirements. Briefly, section 109 of the CAA
requires EPA to promulgate primary national ambient air quality
standards (NAAQS) to protect public health and secondary NAAQS to
protect public welfare. Once EPA sets those standards, states must
develop, adopt, and submit to EPA for approval a SIP that contains
emissions limitations and other control measures to attain and maintain
the NAAQS. Pursuant to section 110, each SIP is required to contain a
preconstruction review program for the construction and modification of
any stationary source of air pollution to assure that the NAAQS are
achieved and maintained; to protect areas of clean air; to protect air
quality-related values (such as visibility) in national parks and other
areas; to assure that appropriate emissions controls are applied; to
maximize opportunities for economic development consistent with the
preservation of clean air resources; and, to ensure that any decision
to increase air pollution is made only after full public consideration
of the consequences of the decision. Section 172 of the CAA requires a
permit program in areas which are not attaining the NAAQS, and section
173 provides the specific requirements for that permit program.
On October 16, 2015, the Virginia Department of Environmental
Quality (VADEQ), on behalf of the Commonwealth of Virginia, submitted a
formal revision to the Virginia SIP. The SIP revision consists of
amendments to the preconstruction permit requirements under VADEQ's
major NSR permit program. The revision affects sources subject to
VADEQ's Prevention of Significant Deterioration (PSD) program, which
applies in areas which are in attainment with (or unclassifiable for)
the NAAQS, as well as affecting sources subject to its nonattainment
NSR permit program, applicable in areas not in attainment with the
NAAQS. By letter dated March 1, 2017, VADEQ officially withdrew a small
and specific portion of the October 16, 2015 submittal from
consideration for approval into the Virginia SIP. A copy of the letter
has been included in the docket for this action. Further discussion of
the withdrawal is provided in section II.A of this notice.
II. Summary of SIP Revision and EPA Analysis
Generally, the October 16, 2015 SIP submittal revision (as amended
March 1, 2017) (hereinafter referred to as the 2015 NSR SIP Revision)
is intended to make the Virginia Administrative Code regulations at
9VAC5 consistent with the federal NSR program at 40 CFR 51.165 and
51.166. The specific changes to 9VAC5 are intended to: (1) Allow the
use of a 10-year lookback period to calculate pre-change emissions for
sources other than electric utility steam generating units (EGUs); (2)
Allow the use of different lookback periods for different regulated NSR
pollutants; (3) Extend the effective period for plantwide applicability
limits (PALs) to 10 years; and, (4) Allow replacement units to be
treated as existing units, and thus provide the ability to use baseline
actual and projected actual emissions when determining applicability.
Additionally, there are a number of minor changes which are strictly
administrative in nature, consisting of small grammatical revisions, or
re-numbering. EPA is proposing to approve VADEQ's 2015 NSR SIP Revision
as a revision to the Virginia SIP because it meets the federal
requirements of 40 CFR 51.165 and 51.165, and CAA sections 110(a) and
173. Additionally, the revisions are in accordance with section 110(l)
of the CAA because they will not interfere with any applicable
requirement concerning attainment and reasonable further progress, or
any other applicable CAA requirement.
A. Baseline Actual Emissions
NSR applicability is determined by comparing the pre-change
emissions of the project to the post-change emissions and determining
whether the net increase is ``significant.'' For new units, pre-change
(baseline) emissions are
[[Page 18273]]
zero. For modified units, sources must calculate baseline actual
emissions (BAE). For sources other than EGUs, the federal PSD and
nonattainment NSR regulations provide for the calculation of BAE using
``. . . the average rate, in tons per year, at which the emissions unit
actually emitted the pollutant during any consecutive 24-month period
selected by the owner or operator within the 10-year period immediately
preceding either the date the owner or operator begins actual
construction of the project, or the date a complete permit application
is received by the reviewing authority . . .'' See 40 CFR
51.165(a)(1)(xxxv)(B) and 51.166(b)(47)(ii). VADEQ's currently approved
BAE definitions, codified at 9VAC5-80 sections 1615C (PSD) and 2010C
(nonattainment NSR), provide for a 5-year lookback period. The 2015 NSR
SIP Revision includes VADEQ's revised definitions of BAE to provide for
a 10-year lookback period for non EGUs, consistent with the federal
counterpart.
When EPA originally approved the 5-year lookback into VADEQ's
nonattainment NSR and PSD programs, limited approval was granted. See
73 FR 62893, 62897 (October 22, 2008). The previous definitions of BAE
at 9VAC5-80 sections 1615C and 2010C in VADEQ's June 27, 2008 SIP
submittals included the 5-year lookback which EPA found approvable,
despite being different from the federal lookback period. However,
VADEQ's regulations at the time in sections 1615C and 2010C also
included provisions for the use of a different time period to calculate
BAE if it was found to be more representative of normal operations. In
our October 22, 2008 final rulemaking notice, EPA raised concerns that
this provision could allow for the use of a lookback period that
extended beyond the ten years allowed by the federal programs for PSD
and NSR. However, EPA noted that because VADEQ had affirmed that it was
not its intention to extend the lookback period beyond ten years, a
limited approval was justified. See 73 FR at 62898. In VADEQ's 2015 NSR
SIP Revision submittal, the provision allowing for the use of a
different lookback period if it was found to be more representative of
normal operations was struck from the definition of BAE at 9VAC5-80
section 1615C, making it consistent with the federal counterpart.
However, that provision was inadvertently left in the definition of BAE
in the version of 9VAC5-80 section 2010C for NSR. By letter dated March
1, 2017, VADEQ officially withdrew from EPA's consideration for
inclusion into the SIP the portion of the definition of BAE at section
2010C stating, ``The board will allow the use of another time period
upon a determination that it is more representative of normal source
operation.'' Thus, EPA finds the revised definition of BAE at 9VAC5-80
section 2010C (with the provision for a different lookback period
stricken) fully approvable as the definition is consistent with federal
CAA requirements. EPA expects that the sentence withdrawn from the SIP
submittal will be removed from the Virginia Code as soon as practicable
as Virginia affirmed in its March 1, 2017 letter, and that VADEQ will
implement its NSR program consistent with the approved SIP and the
federal requirements for NSR in the interim. With this approval, EPA
would also remove its prior limited approval for these regulations.
Finally, the federal requirement for calculating BAE for PSD and
NSR provide for the use of different 24-month periods for different
regulated NSR pollutants. See 40 CFR 51.165(a)(1)(xxxv)(B)(4) and
51.166(b)(47)(ii)(c). Under VADEQ's currently SIP-approved BAE
definitions at 9VAC5-80 sections 1615C and 2010C, and 9VAC5-85 section
50, sources were required to use the same 24-month period for all
regulated NSR pollutants. VADEQ has revised these provisions to allow
for the use of different 24-month periods for different regulated NSR
pollutants for both PSD and NSR and has submitted these revised
definitions in 9VAC5-80 sections 1615C and 2010C and 9VAC5-85 section
50 in its 2015 NSR SIP Revision to be consistent with the federal
requirements relating to different lookback periods for different
regulated NSR pollutants. Because these revisions are consistent with
federal definitions in 40 CFR 51.165 and 51.166 for using different 24-
month periods for different regulated NSR pollutants, EPA finds these
additional revisions in 9VAC5-80 sections 1615C and 2010C and 9VAC5-85
section 50 approvable in accordance with CAA requirements.
B. Plantwide Applicability Limits (PALs)
Federal requirements for PALs include an effective period of ten
years for the plantwide permit.\1\ See 40 CFR 51.165(f) et seq and
51.166(w) et seq. VADEQ's currently-SIP approved regulations only
provided for a 5-year effective period for such plantwide permits. The
2015 NSR SIP Revision includes amended versions of 9VAC-5-80 sections
1615C, 1865C(1)(f), 2010C, and 2144C(1)(f), as well as 9VAC5-85-50, to
provide for a PAL effective period of ten years, consistent with the
federal regulations providing for a ten-year PAL effective period. In
addition, the 2015 NSR SIP Revision includes amended versions of 9VAC5-
80 sections 1865E and 2144E and 9VAC5-85-55 to allow for the use of
different 24-month periods for different regulated NSR pollutants when
establishing PALs, consistent with the discussion in Section II.A of
this notice. Because these amended regulations for PAL effective period
and baseline calculations are now consistent with federal requirements
for PALs in 40 CFR 51.165 and 51.166, EPA finds these amended
provisions approvable for the Virginia SIP.
---------------------------------------------------------------------------
\1\ A PAL is a voluntary permit option that provides the ability
to manage facility-wide emissions without triggering major NSR
review. The flexibility provided under a PAL facilitates the ability
to respond rapidly to changing market conditions while enhancing the
environmental protection afforded under the program. If facility
emissions remain below a plantwide actual emissions cap (that is, an
actuals PAL), then a facility can avoid major NSR permitting process
when making alterations to the facility or individual emissions
units that would otherwise trigger NSR permitting. In return for
this flexibility, facilities must monitor emissions from all
emissions units under the PAL in addition to other recordkeeping and
reporting requirements.
---------------------------------------------------------------------------
C. Replacement Units
Finally, the 2015 NSR SIP Revision submittal adds definitions of
``replacement unit,'' and amends the definitions of ``emissions unit,''
under 9VAC5-80 sections 1615C and 2010C and 9VAC5-85 section 50. The
effect of these revisions is to allow replacement units to be treated
as existing units when calculating pre- and post-change emissions for
purposes of determining NSR applicability. VADEQ's definitions of
``replacement unit'' are consistent with their federal counterparts at
40 CFR 51.165(a)(1)(xxi) and 51.166(b)(32). VADEQ's amended definitions
of ``emissions unit'' are now consistent with their federal
counterparts at 40 CFR 51.165(a)(1)(vii) and 51.166(b)(7), as is
VADEQ's approach to calculating pre- and post-change emissions for
replacement units. Thus, EPA finds these new and amended provisions in
the 2015 NSR SIP Revision approvable.
EPA finds the revisions to 9VAC5-80 sections 1615, 1865, 2010, and
2144 and 9 VAC5-85 sections 50 and 55 (including the changes discussed
herein as well as the minor administrative changes for grammatical and
numbering consistency) consistent with CAA section 110(l). None of the
revisions interfere with any applicable requirement concerning
attainment of any NAAQS nor interfere with reasonable further progress
or any other applicable requirement of the CAA. As
[[Page 18274]]
described in this rulemaking, the revisions to the Virginia Code in the
2015 NSR SIP Revision are consistent with federal requirements for PSD
and NSR in 40 CFR 51.165 and 51.166. Because the revisions are
consistent with federal requirements for PSD and NSR permitting
programs which permit construction and modifications in accordance with
permitting and emission limitation requirements and address definitions
for BAE and PAL effective periods, EPA does not expect any interference
with the NAAQS from these revisions.
III. Proposed Action
EPA's review of VADEQ's 2015 NSR SIP Revision submittal indicates
that it is consistent with the CAA and all of its implementing
regulations. Therefore, EPA is proposing to approve the October 16,
2015 submittal, as amended on March 1, 2017, as a revision to the
Virginia SIP. EPA is soliciting public comments on the issues discussed
in this document. These comments will be considered before taking final
action.
IV. General Information Pertaining to SIP Submittals From the
Commonwealth of Virginia
In 1995, Virginia adopted legislation that provides, subject to
certain conditions, for an environmental assessment (audit)
``privilege'' for voluntary compliance evaluations performed by a
regulated entity. The legislation further addresses the relative burden
of proof for parties either asserting the privilege or seeking
disclosure of documents for which the privilege is claimed. Virginia's
legislation also provides, subject to certain conditions, for a penalty
waiver for violations of environmental laws when a regulated entity
discovers such violations pursuant to a voluntary compliance evaluation
and voluntarily discloses such violations to the Commonwealth and takes
prompt and appropriate measures to remedy the violations. Virginia's
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and
information about the content of those documents that are the product
of a voluntary environmental assessment. The Privilege Law does not
extend to documents or information 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
NSR program consistent with the federal requirements. In any event,
because EPA has also determined that a state audit privilege and
immunity law can affect only state enforcement and cannot have any
impact on federal enforcement authorities, EPA may at any time invoke
its authority under the CAA, including, for example, sections 113, 167,
205, 211 or 213, to enforce the requirements or prohibitions of the
state plan, independently of any state enforcement effort. In addition,
citizen enforcement under section 304 of the CAA is likewise unaffected
by this, or any, state audit privilege or immunity law.
V. Incorporation by Reference
In this proposed rule, EPA is proposing to include in a final EPA
rule regulatory text that includes incorporation by reference. In
accordance with requirements of 1 CFR 51.5, EPA is proposing to
incorporate by reference the VADEQ regulations regarding definition and
permitting requirements discussed in Section II of this notice. EPA has
made, and will continue to make, these materials generally available
through https://www.regulations.gov and/or at the EPA Region III Office
(please contact the person identified in the ``For Further Information
Contact'' section of this preamble for more information).
VI. Statutory and Executive Order Reviews
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 proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
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
[[Page 18275]]
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, pertaining to Virginia's preconstruction
permitting requirements 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).
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.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 21, 2017.
Cecil Rodrigues,
Acting Regional Administrator, Region III.
[FR Doc. 2017-07820 Filed 4-17-17; 8:45 am]
BILLING CODE 6560-50-P
