Approval and Promulgation of Air Quality Implementation Plans; Virginia; Major New Source Review, 40703-40709 [2017-17862]
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required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by October 27, 2017. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this action for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. This action may not
be challenged later in proceedings to
enforce its requirements. See section
307(b)(2).
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
List of Subjects in 40 CFR Part 52
Authority: 42.U.S.C. 7401 et seq.
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Lead, Nitrogen dioxide, Sulfur dioxide,
Particulate matter, Reporting and
recordkeeping requirements.
Dated: August 16, 2017.
V. Anne Heard,
Acting Regional Administrator, Region 4.
Subpart S—Kentucky
2. In § 52.920, table 2 in paragraph (c)
is amended by revising the entry ‘‘1.06’’
to read as follows:
■
§ 52.920
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40 CFR part 52 is amended as follows:
Identification of plan.
*
*
(c) * * *
*
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TABLE 2—EPA-APPROVED JEFFERSON COUNTY REGULATIONS FOR KENTUCKY
Reg
EPA approval
date
Title/subject
District
effective
date
Federal Register notice
Explanation
Reg 1—General Provisions
*
1.06 .....
*
Stationary Source Self-Monitoring, Emissions Inventory
Development, and Reporting.
*
*
*
*
8/28/17
*
*
*
*
*
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2016–0052; FRL–9966–78–
Region 3]
Approval and Promulgation of Air
Quality Implementation Plans; Virginia;
Major New Source Review
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving 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 approving these
revisions to the Virginia SIP in
accordance with the requirements of the
Clean Air Act (CAA).
DATES: This final rule is effective on
September 27, 2017.
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SUMMARY:
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EPA has established a
docket for this action under Docket ID
Number EPA–R03–OAR–2016–0052. 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 through https://
www.regulations.gov or please contact
the person identified in the FOR FURTHER
INFORMATION CONTACT section for
additional availability information.
FOR FURTHER INFORMATION CONTACT:
David Talley, (215) 814–2117, or by
email at talley.david@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On April 18, 2017 (73 FR 18272), EPA
published a notice of proposed
rulemaking (NPR) for the
Commonwealth of Virginia. In the NPR,
EPA proposed approval of revisions to
Virginia’s NSR regulations. On October
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Revision approved except section 5 and any references to
section 5 located in section
3.
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16, 2015, the Commonwealth of Virginia
through the Virginia Department of
Environmental Quality (VADEQ),
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 national
ambient air quality standards (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
As discussed in the NPR, the October
16, 2015 SIP submittal revision (as
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amended March 1, 2017) (hereinafter
referred to as the 2015 NSR SIP
Revision) generally makes 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: (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
approving 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 source(s) affected by the project at
hand to the post-change emissions, and
determining whether the net increase is
‘‘significant.’’ For new units, pre-change
(baseline) emissions are 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 previously
approved BAE definitions, codified at
9VAC5–80 sections 1615C (PSD) and
2010C (nonattainment NSR), provided
for a 5-year lookback period. The 2015
NSR SIP Revision included VADEQ’s
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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 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 granted. 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 permitting up to a 10-year
lookback. 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 also removes its prior limited
approval for these regulations.
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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). VADEQ has revised
the BAE definitions at 9VAC5–80
sections 1615C and 2010C, and 9VAC5–
85 section 50 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 revisions 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
sections 51.165(f) et seq and 51.166(w)
et seq. The 2015 NSR SIP Revision
included 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 included 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. EPA finds these amended
provisions approvable for the Virginia
SIP because these amended regulations
for PAL effective period and baseline
calculations are consistent with Federal
requirements for PALs in 40 CFR 51.165
and 51.166.
C. Replacement Units
Finally, the 2015 NSR SIP Revision
submittal added 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
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.
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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 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 preand 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
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.
Other specific requirements of the
2015 NSR SIP Revision and the
rationale for EPA’s proposed action are
explained in the NPR and will not be
restated here.
III. EPA’s Response to Comments
Received on the Proposed Action
EPA received two sets of comments
on the April 18, 2017 NPR. A full set of
these comments is included in the
docket for this final action. A summary
of the comments and EPA’s responses
are included herein.
Comment: The first commenter asserts
that EPA ‘‘. . . shouldn’t have the right
to tell States what they can and cannot
do,’’ and further, that the States are
capable of ‘‘. . . cleaning up the air.’’
EPA Response: The CAA establishes a
partnership between state and Federal
entities for the protection and
improvement of the nation’s air quality.
Under CAA section 109, EPA is required
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to establish NAAQS for the protection of
public health and welfare. Subsequent
to the promulgation (or revision) of a
NAAQS, states are required by CAA
section 110 to adopt and submit to EPA
for approval, a SIP which provides for
the implementation, maintenance, and
enforcement of the NAAQS. Virginia’s
October 16, 2015 SIP submittal met that
requirement. In addition, section
110(a)(2)(C) specifically requires that
state plans include a PSD and
nonattainment NSR permit program as
required in parts C and D of Title I of
the Clean Air Act. The division of
responsibilities between EPA and the
states in the section 110 process was
reaffirmed by the U.S. Court of Appeals
for the District of Columbia Circuit in
the Commonwealth of Virginia, et al., v.
EPA, 108 F.3d 1397 (D.C. Cir. 1997).
The action being finalized today
approving revisions to Virginia
regulations which implement the PSD
and NSR permit program required by
the CAA is consistent with EPA’s
responsibilities as established by
Congress under CAA section 110. EPA
is approving the 2015 NSR SIP Revision
because it complies with the provisions
of the CAA and applicable federal
regulations as discussed in the NPR and
in this rulemaking action. See section
110(k) of the CAA.
Comment: The second commenter
expressed a need for clean air, and
urged EPA to ‘‘(s)top trying to lower
. . .’’ environmental standards.
EPA Response: EPA thanks the
commenter for the concern for
environmental issues such as clean air
and water. However, the comment is not
germane or relevant to the issues in this
rulemaking to bring Virginia’s NSR
program in line with federal NSR
requirements in 40 CFR 51.165 and
51.166. EPA has fully explained our
reasons for approving VA’s revisions to
its NSR program in this notice and in
the NPR. As discussed in the NPR, 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. In addition, the comment lacks
the required specificity and does not
address any specific Virginia regulation
upon which we should act differently
nor address any action EPA should take
differently with regards to Virginia’s
NSR regulations.
IV. Final Action
EPA is approving the 2015 NSR SIP
Revision as it is in accordance with
requirements in the CAA in sections 110
and 173 and with federal regulations at
40 CFR 51.165 and 51.166.
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Additionally, because the Virginia
regulations submitted in the 2015 NSR
SIP Revision correct issues related to
appropriate BAE and ‘‘lookback period’’
in Virginia’s NSR permit program for
which EPA previously granted limited
approval in 2008, EPA now grants full
approval to Virginia’s NSR permit
program for PSD and NSR permitting.
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 § 10.1–1198, therefore,
documents or other information needed
for civil or criminal enforcement under
one of these programs could not be
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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.
VI. Incorporation by Reference
In this rule, EPA is finalizing
regulatory text that includes
incorporation by reference. In
accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation
by reference of the VADEQ regulations
regarding definitions 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).
Therefore, these materials have been
approved by EPA for inclusion in the
SIP, have been incorporated by
reference by EPA into that plan, are
fully federally enforceable under
sections 110 and 113 of the CAA as of
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the effective date of the final rulemaking
of EPA’s approval, and will be
incorporated by reference by the
Director of the Federal Register in the
next update to the SIP compilation.2
VII. 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 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
• 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).
2 62
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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 October 27, 2017. 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
preconstruction permitting
requirements 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.
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Federal Register / Vol. 82, No. 165 / Monday, August 28, 2017 / Rules and Regulations
Dated: August 12, 2017.
Cecil Rodrigues,
Acting Regional Administrator, Region III.
Authority: 42 U.S.C. 7401 et seq.
1. The authority citation for part 52
continues to read as follows:
■
*
Subpart VV—Virginia
40 CFR part 52 is amended as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
§ 52.2420
Identification of plan.
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*
(c) * * *
*
*
2. In § 52.2420, the table in paragraph
(c) is amended by revising the entries
for Sections ‘‘5–50–270’’, ‘‘5–50–280’’,
‘‘5–80–1605’’ through ‘‘5–80–2240’’,’’5–
85–50’’, and ‘‘5–85–55’’ to read as
follows:
■
EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES
State citation
*
Title/subject
*
*
State
effective
date
*
Explanation [former SIP
citation]
EPA approval date
*
*
*
*
*
9 VAC 5, Chapter 50 New and Modified Stationary Sources [Part V]
*
*
*
*
*
Article 4 Standards of Performance for Stationary Sources (Rule 5–4)
*
*
*
5–50–270 ................................ Standard for Major Stationary
Sources (Nonattainment
Areas).
5–50–280 ................................ Standard for Stationary
Sources (Prevention of Significant Deterioration Areas).
*
*
*
*
9/1/06
9/1/06
*
*
*
*
8/28/17, [Insert Federal Reg- Previous approval 10/22/08.
ister citation].
8/28/17, [Insert Federal Register citation].
*
Previous approval 10/22/08.
*
*
*
*
9 VAC 5, Chapter 80 Permits for Stationary Sources [Part VIII]
*
*
*
*
*
Article 8 Permits—Major Stationary Sources and Major Modifications Located in Prevention of Significant Deterioration Areas
5–80–1605 ..............................
Applicability ............................
9/1/06
5–80–1615 ..............................
Definitions ..............................
8/13/15
5–80–1625 ..............................
General ..................................
7/23/09
5–80–1635 ..............................
Ambient Air Increments .........
8/17/11
5–80–1645 ..............................
Ambient Air Ceilings ..............
9/1/06
5–80–1655 ..............................
Applications ............................
9/1/06
5–80–1665 ..............................
9/1/06
5–80–1685 ..............................
Compliance with local zoning
requirements.
Compliance determination
and verification by performance testing.
Stack Heights .........................
9/1/06
5–80–1695 ..............................
Exemptions ............................
6/4/14
5–80–1705 ..............................
Control technology review .....
9/1/06
5–80–1715 ..............................
Source impact analysis ..........
6/4/14
5–80–1725 ..............................
Air quality models ..................
9/1/06
5–80–1735 ..............................
Air quality analysis .................
9/1/06
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5–80–1675 ..............................
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ister citation].
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ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
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ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
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Reg-
Previous approval 10/22/08.
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28AUR1
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Federal Register / Vol. 82, No. 165 / Monday, August 28, 2017 / Rules and Regulations
EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES—Continued
State
effective
date
State citation
Title/subject
5–80–1745 ..............................
Source Information ................
9/1/06
5–80–1755 ..............................
Additional impact analysis .....
9/1/06
5–80–1765 ..............................
8/17/11
5–80–1775 ..............................
Sources affecting Federal
class I areas—additional
requirements.
Public participation .................
5–80–1785 ..............................
Source obligation ...................
9/1/06
5–80–1795 ..............................
9/1/06
5–80–1805 ..............................
Environmental impact statements.
Disputed permits ....................
9/1/06
5–80–1815 ..............................
Interstate pollution abatement
9/1/06
5–80–1825 ..............................
Innovative control technology
9/1/06
5–80–1865 ..............................
Actuals plantwide applicability
(PAL).
Actions to combine permit
terms and conditions.
Actions to change permits .....
8/13/15
5–80–1915 ..............................
5–80–1925 ..............................
5–80–1935 ..............................
5–80–1945 ..............................
5–80–1955 ..............................
9/1/06
7/23/09
7/23/09
Administrative permit amendments.
Minor permit amendments .....
7/23/09
7/23/09
5–80–1965 ..............................
Significant amendment procedures.
Reopening for cause .............
7/23/09
5–80–1975 ..............................
Transfer of permits ................
9/1/06
5–80–1985 ..............................
Permit invalidation, revocation, and enforcement.
Existence of permit no defense.
9/1/06
5–80–1995 ..............................
7/23/09
9/1/06
EPA approval date
Explanation [former SIP
citation]
8/28/17, [Insert Federal Register citation].
8/28/17, [Insert Federal Register citation].
8/28/17, [Insert Federal Register citation].
Previous approval 10/22/08.
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
Reg-
Previous approval 10/22/08.
Reg-
Previous approval 10/22/08.
Reg-
Previous approval 10/22/08.
Reg-
Previous approval 10/22/08.
Reg-
Previous approval 10/22/08.
Reg-
Previous approval 10/22/08.
Previous approval 10/22/08.
Previous approval 10/22/08.
RegReg-
Previous approval 10/22/08.
Reg-
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Reg-
Previous approval 10/22/08.
Reg-
Previous approval 10/22/08.
Reg-
Previous approval 10/22/08.
Reg-
Previous approval 10/22/08.
Reg-
Previous approval 10/22/08.
Reg-
Previous approval 10/22/08.
Reg-
Previous approval 10/22/08.
Article 9 PermitsMajor Stationary Sources and Major Modifications Located in Nonattainment Areas or the Ozone Transport Region
Applicability ............................
5–80–2010 ..............................
Definitions ..............................
5/1/02
9/1/06
8/13/15
8/28/17, [Insert Federal Register citation].
8/28/17, [Insert Federal Register citation].
5–80–2020 ..............................
General ..................................
7/23/09
5–80–2030 ..............................
Applications ............................
5–80–2040 ..............................
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5–80–2000 ..............................
5–80–2060 ..............................
Application information required.
Standards and conditions for
granting permits.
Action on permit application ..
5–80–2070 ..............................
Public participation .................
5–80–2080 ..............................
Compliance determination
and verification by performance testing.
5/1/02
9/1/06
5/1/02
9/1/06
5/1/02
9/1/06
5/1/02
9/1/06
5/1/02
9/1/06
5/1/02
9/1/06
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
5–80–2050 ..............................
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Previous approval 10/22/08.
Reg-
Paragraph C is revised, except that under subdivision
b of the definition of ‘‘baseline actual emissions,’’ the
sentence stating, ‘‘The
board shall allow the use of
another time period upon a
determination that it is
more representative of normal source operation,’’ is
not in the SIP.
Previous approval 10/22/08.
Reg-
Previous approval 10/22/08.
Reg-
Previous approval 10/22/08.
Reg-
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28AUR1
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Federal Register / Vol. 82, No. 165 / Monday, August 28, 2017 / Rules and Regulations
EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES—Continued
State
effective
date
State citation
Title/subject
5–80–2090 ..............................
5–80–2091 ..............................
Application review and analysis.
Source obligation ...................
5/1/02
9/01/06
9/1/06
5–80–2110 ..............................
Interstate Pollution Abatement
5–80–2120 ..............................
Offsets ....................................
5/1/02
9/1/06
8/17/11
5–80–2130 ..............................
De minimis increases and
stationary source modification alternatives for ozone
nonattainment areas classified as serious or severe in
9 VAC 5–20–204.
Exemptions ............................
5–80–2140 ..............................
5–80–2144 ..............................
5–80–2150 ..............................
5–80–2170 ..............................
5–80–2180 ..............................
5–80–2190 ..............................
5–80–2195 ..............................
5–80–2200 ..............................
5–80–2210 ..............................
5–80–2220 ..............................
5–80–2230 ..............................
5–80–2240 ..............................
5/1/02
9/1/06
7/23/09
Actuals plantwide applicability
limits (PALs).
Compliance with local zoning
requirements.
Transfer of permits ................
8/13/15
5/1/02
9/01/06
5/1/02
9/1/06
5/1/02
9/1/06
5/1/02
9/1/06
7/23/09
Permit invalidation, revocation, and enforcement.
Existence of permit no defense.
Actins to combine permit
terms and conditions.
Actions to change permits .....
7/23/09
Administrative permit amendments.
Minor permit amendments .....
7/23/09
7/23/09
Significant amendment procedures.
Reopening for cause .............
7/23/09
7/23/09
Explanation [former SIP
citation]
EPA approval date
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
8/28/17, [Insert Federal
ister citation].
Reg-
Previous approval 10/22/08.
Reg-
Previous approval 10/22/08.
Reg-
Previous approval 10/22/08.
Reg-
Previous approval 10/22/08.
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Previous approval 10/22/08.
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Previous approval 10/22/08.
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Previous approval 10/22/08.
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Previous approval 10/22/08.
9 VAC 5, Chapter 85 Permits for Stationary Sources of Pollutants Subject to Regulation
*
*
*
*
*
*
*
*
*
8/28/17, [Insert Federal Register citation].
8/28/17, [Insert Federal Register citation].
*
Part III Prevention of Significant Deterioration Permit Actions
*
*
*
5–85–50 .................................. Definitions ..............................
5–85–55 ..................................
*
*
*
Actuals Plantwide applicability
limits (PALs).
*
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*
*
8/13/15
*
8/13/15
*
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]]>Agencies
[Federal Register Volume 82, Number 165 (Monday, August 28, 2017)]
[Rules and Regulations]
[Pages 40703-40709]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-17862]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2016-0052; FRL-9966-78-Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Major New Source Review
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is approving
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 approving these revisions to the Virginia SIP in accordance with the
requirements of the Clean Air Act (CAA).
DATES: This final rule is effective on September 27, 2017.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2016-0052. 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 through
https://www.regulations.gov or please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section for additional availability
information.
FOR FURTHER INFORMATION CONTACT: David Talley, (215) 814-2117, or by
email at talley.david@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On April 18, 2017 (73 FR 18272), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Virginia. In the NPR, EPA
proposed approval of revisions to Virginia's NSR regulations. On
October 16, 2015, the Commonwealth of Virginia through the Virginia
Department of Environmental Quality (VADEQ), 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 national
ambient air quality standards (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
As discussed in the NPR, the October 16, 2015 SIP submittal
revision (as
[[Page 40704]]
amended March 1, 2017) (hereinafter referred to as the 2015 NSR SIP
Revision) generally makes 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: (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 approving 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 source(s) affected by the project at hand to the post-
change emissions, and determining whether the net increase is
``significant.'' For new units, pre-change (baseline) emissions are
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 previously
approved BAE definitions, codified at 9VAC5-80 sections 1615C (PSD) and
2010C (nonattainment NSR), provided for a 5-year lookback period. The
2015 NSR SIP Revision included 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 granted. 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 permitting up to a 10-year lookback. 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 also removes 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). VADEQ has revised the BAE definitions at 9VAC5-80
sections 1615C and 2010C, and 9VAC5-85 section 50 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 revisions 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 sections 51.165(f) et seq
and 51.166(w) et seq. The 2015 NSR SIP Revision included 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 included 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. EPA finds these
amended provisions approvable for the Virginia SIP because these
amended regulations for PAL effective period and baseline calculations
are consistent with Federal requirements for PALs in 40 CFR 51.165 and
51.166.
---------------------------------------------------------------------------
\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 added 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
[[Page 40705]]
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 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 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.
Other specific requirements of the 2015 NSR SIP Revision and the
rationale for EPA's proposed action are explained in the NPR and will
not be restated here.
III. EPA's Response to Comments Received on the Proposed Action
EPA received two sets of comments on the April 18, 2017 NPR. A full
set of these comments is included in the docket for this final action.
A summary of the comments and EPA's responses are included herein.
Comment: The first commenter asserts that EPA ``. . . shouldn't
have the right to tell States what they can and cannot do,'' and
further, that the States are capable of ``. . . cleaning up the air.''
EPA Response: The CAA establishes a partnership between state and
Federal entities for the protection and improvement of the nation's air
quality. Under CAA section 109, EPA is required to establish NAAQS for
the protection of public health and welfare. Subsequent to the
promulgation (or revision) of a NAAQS, states are required by CAA
section 110 to adopt and submit to EPA for approval, a SIP which
provides for the implementation, maintenance, and enforcement of the
NAAQS. Virginia's October 16, 2015 SIP submittal met that requirement.
In addition, section 110(a)(2)(C) specifically requires that state
plans include a PSD and nonattainment NSR permit program as required in
parts C and D of Title I of the Clean Air Act. The division of
responsibilities between EPA and the states in the section 110 process
was reaffirmed by the U.S. Court of Appeals for the District of
Columbia Circuit in the Commonwealth of Virginia, et al., v. EPA, 108
F.3d 1397 (D.C. Cir. 1997). The action being finalized today approving
revisions to Virginia regulations which implement the PSD and NSR
permit program required by the CAA is consistent with EPA's
responsibilities as established by Congress under CAA section 110. EPA
is approving the 2015 NSR SIP Revision because it complies with the
provisions of the CAA and applicable federal regulations as discussed
in the NPR and in this rulemaking action. See section 110(k) of the
CAA.
Comment: The second commenter expressed a need for clean air, and
urged EPA to ``(s)top trying to lower . . .'' environmental standards.
EPA Response: EPA thanks the commenter for the concern for
environmental issues such as clean air and water. However, the comment
is not germane or relevant to the issues in this rulemaking to bring
Virginia's NSR program in line with federal NSR requirements in 40 CFR
51.165 and 51.166. EPA has fully explained our reasons for approving
VA's revisions to its NSR program in this notice and in the NPR. As
discussed in the NPR, 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. In addition, the comment lacks the required specificity and
does not address any specific Virginia regulation upon which we should
act differently nor address any action EPA should take differently with
regards to Virginia's NSR regulations.
IV. Final Action
EPA is approving the 2015 NSR SIP Revision as it is in accordance
with requirements in the CAA in sections 110 and 173 and with federal
regulations at 40 CFR 51.165 and 51.166. Additionally, because the
Virginia regulations submitted in the 2015 NSR SIP Revision correct
issues related to appropriate BAE and ``lookback period'' in Virginia's
NSR permit program for which EPA previously granted limited approval in
2008, EPA now grants full approval to Virginia's NSR permit program for
PSD and NSR permitting.
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
[[Page 40706]]
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.
VI. Incorporation by Reference
In this rule, EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation by reference of the VADEQ
regulations regarding definitions 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).
Therefore, these materials have been approved by EPA for inclusion
in the SIP, have been incorporated by reference by EPA into that plan,
are fully federally enforceable under sections 110 and 113 of the CAA
as of the effective date of the final rulemaking of EPA's approval, and
will be incorporated by reference by the Director of the Federal
Register in the next update to the SIP compilation.\2\
---------------------------------------------------------------------------
\2\ 62 FR 27968 (May 22, 1997).
---------------------------------------------------------------------------
VII. 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 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
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 October 27, 2017. 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 preconstruction permitting
requirements 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.
[[Page 40707]]
Dated: August 12, 2017.
Cecil Rodrigues,
Acting 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 for Sections ``5-50-270'', ``5-50-280'', ``5-80-1605''
through ``5-80-2240'',''5-85-50'', and ``5-85-55'' to read as follows:
Sec. 52.2420 Identification of plan.
* * * * *
(c) * * *
Epa-Approved Virginia Regulations and Statutes
----------------------------------------------------------------------------------------------------------------
State
State citation Title/subject effective EPA approval date Explanation [former
date SIP citation]
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
9 VAC 5, Chapter 50 New and Modified Stationary Sources [Part V]
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Article 4 Standards of Performance for Stationary Sources (Rule 5-4)
----------------------------------------------------------------------------------------------------------------
* * * * * * *
5-50-270......................... Standard for Major 9/1/06 8/28/17, [Insert Previous approval
Stationary Sources Federal Register 10/22/08.
(Nonattainment citation].
Areas).
5-50-280......................... Standard for 9/1/06 8/28/17, [Insert Previous approval
Stationary Sources Federal Register 10/22/08.
(Prevention of citation].
Significant
Deterioration
Areas).
* * * * * * *
----------------------------------------------------------------------------------------------------------------
9 VAC 5, Chapter 80 Permits for Stationary Sources [Part VIII]
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Article 8 Permits--Major Stationary Sources and Major Modifications Located in Prevention of Significant
Deterioration Areas
----------------------------------------------------------------------------------------------------------------
5-80-1605........................ Applicability...... 9/1/06 8/28/17, [Insert Previous approval
Federal Register 10/22/08.
citation].
5-80-1615........................ Definitions........ 8/13/15 8/28/17, [Insert ...................
Federal Register
citation].
5-80-1625........................ General............ 7/23/09 8/28/17, [Insert Previous approval
Federal Register 10/22/08.
citation].
5-80-1635........................ Ambient Air 8/17/11 8/28/17, [Insert Previous approval
Increments. Federal Register 10/22/08.
citation].
5-80-1645........................ Ambient Air 9/1/06 8/28/17, [Insert Previous approval
Ceilings. Federal Register 10/22/08.
citation].
5-80-1655........................ Applications....... 9/1/06 8/28/17, [Insert Previous approval
Federal Register 10/22/08.
citation].
5-80-1665........................ Compliance with 9/1/06 8/28/17, [Insert Previous approval
local zoning Federal Register 10/22/08.
requirements. citation].
5-80-1675........................ Compliance 9/1/06 8/28/17, [Insert Previous approval
determination and Federal Register 10/22/08.
verification by citation].
performance
testing.
5-80-1685........................ Stack Heights...... 9/1/06 8/28/17, [Insert Previous approval
Federal Register 10/22/08.
citation].
5-80-1695........................ Exemptions......... 6/4/14 8/28/17, [Insert Previous approval
Federal Register 10/22/08.
citation].
5-80-1705........................ Control technology 9/1/06 8/28/17, [Insert Previous approval
review. Federal Register 10/22/08.
citation].
5-80-1715........................ Source impact 6/4/14 8/28/17, [Insert Previous approval
analysis. Federal Register 10/22/08.
citation].
5-80-1725........................ Air quality models. 9/1/06 8/28/17, [Insert Previous approval
Federal Register 10/22/08.
citation].
5-80-1735........................ Air quality 9/1/06 8/28/17, [Insert Previous approval
analysis. Federal Register 10/22/08.
citation].
[[Page 40708]]
5-80-1745........................ Source Information. 9/1/06 8/28/17, [Insert Previous approval
Federal Register 10/22/08.
citation].
5-80-1755........................ Additional impact 9/1/06 8/28/17, [Insert Previous approval
analysis. Federal Register 10/22/08.
citation].
5-80-1765........................ Sources affecting 8/17/11 8/28/17, [Insert Previous approval
Federal class I Federal Register 10/22/08.
areas--additional citation].
requirements.
5-80-1775........................ Public 9/1/06 8/28/17, [Insert Previous approval
participation. Federal Register 10/22/08.
citation].
5-80-1785........................ Source obligation.. 9/1/06 8/28/17, [Insert Previous approval
Federal Register 10/22/08.
citation].
5-80-1795........................ Environmental 9/1/06 8/28/17, [Insert Previous approval
impact statements. Federal Register 10/22/08.
citation].
5-80-1805........................ Disputed permits... 9/1/06 8/28/17, [Insert Previous approval
Federal Register 10/22/08.
citation].
5-80-1815........................ Interstate 9/1/06 8/28/17, [Insert Previous approval
pollution Federal Register 10/22/08.
abatement. citation].
5-80-1825........................ Innovative control 9/1/06 8/28/17, [Insert Previous approval
technology. Federal Register 10/22/08.
citation].
5-80-1865........................ Actuals plantwide 8/13/15 8/28/17, [Insert ...................
applicability Federal Register
(PAL). citation].
5-80-1915........................ Actions to combine 7/23/09 8/28/17, [Insert Previous approval
permit terms and Federal Register 10/22/08.
conditions. citation].
5-80-1925........................ Actions to change 7/23/09 8/28/17, [Insert Previous approval
permits. Federal Register 10/22/08.
citation].
5-80-1935........................ Administrative 7/23/09 8/28/17, [Insert Previous approval
permit amendments. Federal Register 10/22/08.
citation].
5-80-1945........................ Minor permit 7/23/09 8/28/17, [Insert Previous approval
amendments. Federal Register 10/22/08.
citation].
5-80-1955........................ Significant 7/23/09 8/28/17, [Insert Previous approval
amendment Federal Register 10/22/08.
procedures. citation].
5-80-1965........................ Reopening for cause 7/23/09 8/28/17, [Insert Previous approval
Federal Register 10/22/08.
citation].
5-80-1975........................ Transfer of permits 9/1/06 8/28/17, [Insert Previous approval
Federal Register 10/22/08.
citation].
5-80-1985........................ Permit 9/1/06 8/28/17, [Insert Previous approval
invalidation, Federal Register 10/22/08.
revocation, and citation].
enforcement.
5-80-1995........................ Existence of permit 9/1/06 8/28/17, [Insert Previous approval
no defense. Federal Register 10/22/08.
citation].
----------------------------------------------------------------------------------------------------------------
Article 9 PermitsMajor Stationary Sources and Major Modifications Located in Nonattainment Areas or the Ozone
Transport Region
----------------------------------------------------------------------------------------------------------------
5-80-2000........................ Applicability...... 5/1/02 8/28/17, [Insert Previous approval
9/1/06 Federal Register 10/22/08.
citation].
5-80-2010........................ Definitions........ 8/13/15 8/28/17, [Insert Paragraph C is
Federal Register revised, except
citation]. that under
subdivision b of
the definition of
``baseline actual
emissions,'' the
sentence stating,
``The board shall
allow the use of
another time
period upon a
determination that
it is more
representative of
normal source
operation,'' is
not in the SIP.
5-80-2020........................ General............ 7/23/09 8/28/17, [Insert Previous approval
Federal Register 10/22/08.
citation].
5-80-2030........................ Applications....... 5/1/02 8/28/17, [Insert Previous approval
9/1/06 Federal Register 10/22/08.
citation].
5-80-2040........................ Application 5/1/02 8/28/17, [Insert Previous approval
information 9/1/06 Federal Register 10/22/08.
required. citation].
5-80-2050........................ Standards and 5/1/02 8/28/17, [Insert Previous approval
conditions for 9/1/06 Federal Register 10/22/08.
granting permits. citation].
5-80-2060........................ Action on permit 5/1/02 8/28/17, [Insert Previous approval
application. 9/1/06 Federal Register 10/22/08.
citation].
5-80-2070........................ Public 5/1/02 8/28/17, [Insert Previous approval
participation. 9/1/06 Federal Register 10/22/08.
citation].
5-80-2080........................ Compliance 5/1/02 8/28/17, [Insert Previous approval
determination and 9/1/06 Federal Register 10/22/08.
verification by citation].
performance
testing.
[[Page 40709]]
5-80-2090........................ Application review 5/1/02 8/28/17, [Insert Previous approval
and analysis. 9/01/06 Federal Register 10/22/08.
citation].
5-80-2091........................ Source obligation.. 9/1/06 8/28/17, [Insert Previous approval
Federal Register 10/22/08.
citation].
5-80-2110........................ Interstate 5/1/02 8/28/17, [Insert Previous approval
Pollution 9/1/06 Federal Register 10/22/08.
Abatement. citation].
5-80-2120........................ Offsets............ 8/17/11 8/28/17, [Insert Previous approval
Federal Register 10/22/08.
citation].
5-80-2130........................ De minimis 5/1/02 8/28/17, [Insert Previous approval
increases and 9/1/06 Federal Register 10/22/08.
stationary source citation].
modification
alternatives for
ozone
nonattainment
areas classified
as serious or
severe in 9 VAC 5-
20-204.
5-80-2140........................ Exemptions......... 7/23/09 8/28/17, [Insert Previous approval
Federal Register 10/22/08.
citation].
5-80-2144........................ Actuals plantwide 8/13/15 8/28/17, [Insert ...................
applicability Federal Register
limits (PALs). citation].
5-80-2150........................ Compliance with 5/1/02 8/28/17, [Insert Previous approval
local zoning 9/01/06 Federal Register 10/22/08.
requirements. citation].
5-80-2170........................ Transfer of permits 5/1/02 8/28/17, [Insert Previous approval
9/1/06 Federal Register 10/22/08.
citation].
5-80-2180........................ Permit 5/1/02 8/28/17, [Insert Previous approval
invalidation, 9/1/06 Federal Register 10/22/08.
revocation, and citation].
enforcement.
5-80-2190........................ Existence of permit 5/1/02 8/28/17, [Insert Previous approval
no defense. 9/1/06 Federal Register 10/22/08.
citation].
5-80-2195........................ Actins to combine 7/23/09 8/28/17, [Insert Previous approval
permit terms and Federal Register 10/22/08.
conditions. citation].
5-80-2200........................ Actions to change 7/23/09 8/28/17, [Insert Previous approval
permits. Federal Register 10/22/08.
citation].
5-80-2210........................ Administrative 7/23/09 8/28/17, [Insert Previous approval
permit amendments. Federal Register 10/22/08.
citation].
5-80-2220........................ Minor permit 7/23/09 8/28/17, [Insert Previous approval
amendments. Federal Register 10/22/08.
citation].
5-80-2230........................ Significant 7/23/09 8/28/17, [Insert Previous approval
amendment Federal Register 10/22/08.
procedures. citation].
5-80-2240........................ Reopening for cause 7/23/09 8/28/17, [Insert Previous approval
Federal Register 10/22/08.
citation].
----------------------------------------------------------------------------------------------------------------
9 VAC 5, Chapter 85 Permits for Stationary Sources of Pollutants Subject to Regulation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Part III Prevention of Significant Deterioration Permit Actions
----------------------------------------------------------------------------------------------------------------
* * * * * * *
5-85-50.......................... Definitions........ 8/13/15 8/28/17, [Insert ...................
Federal Register
citation].
5-85-55.......................... Actuals Plantwide 8/13/15 8/28/17, [Insert ...................
applicability Federal Register
limits (PALs). citation].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. 2017-17862 Filed 8-25-17; 8:45 am]
BILLING CODE 6560-50-P
