[Federal Register Volume 61, Number 16 (Wednesday, January 24, 1996)]
[Proposed Rules]
[Pages 1880-1883]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1051]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[VA25-1; A-1-FRL-5402-1]
Approval and Promulgation of Air Quality Implementation Plans;
Commonwealth of Virginia--Prevention of Significant Deterioration
Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to disapprove or, in the alternative, to
conditionally approve a State Implementation Plan (SIP) revision
submitted by the Commonwealth of Virginia. This revision, consisting of
two parts, establishes a program for prevention of significant
deterioration of air quality (PSD). The first part includes Virginia's
regulations and procedures for a PSD program. The second part includes
amendments to those regulations submitted as part of the SIP revision.
The intended effect of this action is to propose disapproval or, in the
alternative, approval of Virginia's request to amend its SIP to satisfy
federal new source review requirements for the preconstruction
permitting of new sources and modifications in attainment and
unclassifiable areas, on the condition that deficiencies in the state
program are corrected and submitted within one year of approval. This
action is being taken under the Clean Air Act (CAA).
DATES: Comments must be received on or before February 23, 1996. Public
comments on this document are requested and will be considered before
taking final action on this SIP revision.
ADDRESSES: Comments may be mailed to Marcia L. Spink, Associate
Director, Air, Radiation, and Toxics Division, U.S. Environmental
Protection Agency, Region III, 841 Chestnut Building, Philadelphia, PA
19107. Copies of the documents relevant to this action are available
for public inspection during normal business hours at the Air,
Radiation, and Toxics Division, U.S. Environmental Protection Agency,
Region III, 841 Chestnut Building, Philadelphia, PA 19107, and at the
Virginia Department of Environmental Quality, P.O. Box 10089, Richmond,
Virginia, 23240.
FOR FURTHER INFORMATION CONTACT: Lisa M. Donahue (215) 597-2923, at the
EPA Region III address above.
SUPPLEMENTARY INFORMATION: In a series of submittals, the Virginia
Department of Air Pollution Control (DAPC), now known as the Department
of Environmental Quality (VDEQ), submitted the elements for a revision
to its SIP that would establish a program for the prevention of
significant deterioration of air quality (PSD) in the review and
permitting of new major sources and major modifications (the PSD
program). On December 17 and 18, 1992, the VDEQ transmitted a request
for the approval of the Commonwealth's regulations for PSD and its
``Procedures for Implementation of Prevention of Significant
Deterioration (PSD) of Air Quality Program (AQP-11)'', a non-regulatory
procedures document, as a revision to the Virginia State Implementation
Plan. Specifically, the December 17, 1992 submittal included AQP-11,
and the December 18, 1992 submittal consisted of Virginia Regulation
for the Control and Abatement of Air Pollution, Sec. 120-08-02
Permits--Major Stationary Sources and Major Modifications Locating in
Prevention of Significant Deterioration Areas. On February 3, 1993,
DAPC sent a Summary of Public Testimony and Response Thereto in order
to satisfy federal SIP revision completeness criteria. On February 18,
1993 DAPC sent Virginia Regulations Appendix L, also to be included in
the SIP revision. On August 16, 1993 the VDEQ submitted a supplementary
revision to Sec. 120-01-01 and 120-08-02 to correct deficiencies in its
earlier PSD regulations.
[[Page 1881]]
If Virginia's PSD regulations are disapproved by EPA the current
federal implementation plan (FIP) for PSD in Virginia at 40 CFR 52.2451
and the delegation agreement between EPA and Virginia will continue to
be in effect. If Virginia's PSD regulations are approved by EPA, the
state will have authority to implement and enforce the PSD program
through its SIP, the current FIP at 40 CFR 52.2451 will be withdrawn,
and the delegation agreement between EPA and Virginia will be
terminated.
Background
On June 19, 1978, EPA promulgated the PSD regulations of 40 CFR
52.21 (b) through (w) into the Virginia SIP at 40 CFR 52.2451 and
federally implemented the PSD program in Virginia. As of June 3, 1981,
authority for implementation of the Federal PSD program was delegated
to the Commonwealth of Virginia, and Virginia began issuing and
enforcing Federal PSD permits. On September 20, 1991, Virginia was
granted the authority to implement and enforce the nitrogen dioxide
(NO2) increment portion of the federal PSD program.
On June 3, 1993 (58 FR 31636), EPA promulgated rules which revised
the PSD requirement for particulate matter (PM). The revised increments
for PM restrict increases in ambient concentrations of PM-10, which is
defined as particles with an aerodynamic diameter of less than or equal
to 10 micrometers. The revisions affect the regulations of 40 CFR parts
51 and 52 which specify the increments for PM, and became effective on
June 3, 1994. On July 20, 1993 (58 FR 38822), EPA promulgated rules
which revised the ``Guidelines for Air Quality Models'' by adding a
1993 supplement to the Guidelines. The revisions affect the regulations
of 40 CFR parts 51 and 52 which specify the version of the guidelines,
and became effective on August 19, 1993. Virginia must still revise its
regulations to include the PM-10 increment and modeling guideline
provisions and submit them as a revision to the SIP. However, EPA does
not believe that it should delay the processing of the SIP revisions
relating to PSD which Virginia has already submitted because of the
need for additional revisions pertaining to PM-10 and modelling
guidelines.
EPA proposes to retain authority, under 40 CFR 52.21, for
implementing and enforcing all Virginia PSD permits, or portions
thereof, involving requirements related to PM-10. EPA also proposes to
keep its current delegation of authority to Virginia to issue PSD
permits in effect insofar, and only insofar, as PSD requirements
pertaining to PM-10 are concerned. On October 16, 1995, Virginia
published a ``Notice of Intended Regulatory Revision UU Concerning
Prevention of Significant Deterioration'' and notified EPA of its
intent. The purpose of the proposed action is to amend Virginia's PSD
regulation to make it conform with federal PSD PM-10 increment and
modeling guideline provisions. EPA solicits comments on this issue.
Summary and Analysis of Virginia's Submittal
In the first part of the Commonwealth's submittal, the Commonwealth
requested that the ``Virginia Regulations for the Control and Abatement
of Air Pollution for Prevention of Significant Deterioration, Sec. 120-
08-02 and Appendix L'', and ``Air Quality Program Policies and
Procedures for Implementation of Prevention of Significant
Deterioration (PSD) of Air Quality Program (AQP-11)'' be added to the
Virginia State Implementation Plan.
Virginia's submittal included four commitments. The first
commitment, to adopt certain regulatory changes and submit them for EPA
approval, is addressed in this notice. The other three commitments
were: the state will ``transmit to the Regional Administrator or his
designee a copy of each permit application relating to a major
stationary source or major modification, and provide notice to the
Regional Administrator of every action related to the consideration of
such permit,'' ``make a positive determination of completeness of an
application and will notify the applicant whether or not the
application is complete,'' and ``perform a periodic assessment'' of the
PSD SIP.
The second part of Virginia's submittal, consisting of amendments
to Virginia Regulation Sec. 120-08-02, Permits for Major Stationary
Sources and Major Modifications in Prevention of Significant
Deterioration Areas, and Appendix L, Prevention of Significant
Deterioration Areas, was submitted on August 16, 1993. These
corrections to the PSD regulations included certain elements necessary
for federal approval of the state PSD program. The August 16, 1993 part
of the submittal also included a revision to general definitions for
Class I, II, and III areas, at Sec. 120-01-02, Terms Defined.
The provisions of Virginia Regulation Sec. 120-08-02 apply to the
construction of any major source or major modification in areas that
are designated attainment or unclassifiable for the National Ambient
Air Quality Standards (NAAQS). Specific applicable geographic locations
in Virginia are designated in Appendix L of the regulations. Through
the definitions of major source and major modification equivalent to
federal definitions, Virginia's regulations capture the correct
universe of sources for the PSD program. Each new source or
modification is required to apply Best Available Control Technology
(BACT) and demonstrate that the proposed source or modification would
not cause or contribute to air pollution in violation of a NAAQS in any
Air Quality Control Region or an applicable maximum allowable increase
over the baseline concentration (increment) in any area.
Regulation 120-01-02, Terms Defined, was included in the August 16,
1993 supplement to the submittal. The definitions of Class I, II, and
III geographic locations in Virginia that are applicable to PSD are
designated in Appendix L of the regulations and defined by locality for
criteria and other pollutants. Appendix L classifies PSD areas, which
include two federal Class I areas, James River Face Wilderness Area and
Shenandoah National Park. Virginia has no Class III areas.
The procedures used to determine increment allocation, consumption
and protection, established in Virginia's AQP-11, are consistent with
federal regulations. Under Virginia's program, increment is allocated
to permit applicants on a sequential basis at the time an application
is determined to be complete. Increment consumption shall be calculated
using the most recent representative meteorological data. Any PSD
applicant shall be required to demonstrate through air quality modeling
that emissions increases would not cause or contribute to any violation
of allowable increments within a Class I area if: (1.) the applicant
proposes to construct or modify within 100 kilometers of a Class I
area, (2.) EPA believes a demonstration is necessary, even though the
applicant will be constructing beyond 100 kilometers, or (3.) Virginia
believes the change in question may appreciably affect increment
consumption in the Class I area. Virginia's regulations also include
the requirements of 40 CFR 51.166(p) for sources impacting federal
class I areas. In Sec. 120-08-02 and AQP-11, Virginia cites and will
use EPA's Guideline on Air Quality Models and EPA guidance regarding
``Class I Area Significant Impact Levels and Modeling Class I Area
Impacts'' for increment analysis and maintenance of the NAAQS. An
inventory of emissions that consume Class I increment will be
maintained by the Commonwealth. AQP-11 also outlines steps to prevent
[[Page 1882]]
increment violations and to respond to a Federal Land Manager who has
determined that a proposed emissions increase would have an adverse
impact on the air quality related values.
The PSD provisions of the CAA emphasize the importance of public
participation in permitting decisions. See section 160(5) of the CAA.
In addition, section 165(a)(2) of the CAA provides that no PSD permit
shall be issued unless a ``public hearing has been held with
opportunity for interested persons including representatives of the
Administrator to appear and submit written or oral presentations on the
air quality impacts to the source, alternatives thereto, control
technology requirements, and other appropriate considerations.'' See
also section 40 CFR 51.166(q)(2)(v). Further, 40 CFR 51.166(a)(1)
provides that ``[i]n accordance with the policy of section 101(b)(1) of
the CAA and the purposes of section 160 of the CAA, each applicable
State implementation plan shall contain emission limitations and such
other measures as may be necessary to prevent significant deterioration
of air quality.'' See also section 161 of the CAA.
EPA interprets existing law and regulations to require an
opportunity for state judicial review of PSD permit actions under
approved PSD SIPs by permit applicants and affected members of the
public in order to ensure an adequate and meaningful opportunity for
public review and comment on all issues within the scope of the
permitting decision, including environmental justice concerns and
alternatives to the proposed source. The EPA believes that an
opportunity for public review and comment, as provided in the statute
and regulations, is seriously compromised where an affected member of
the public is unable to obtain judicial review of an alleged failure of
the state to abide by its PSD SIP permitting rules. Accordingly, all
such persons, as well as the applicant, must be able to challenge PSD
permitting actions in a judicial forum.
In Section 307(b) of the CAA, Congress expressly provided an
opportunity for judicial review of PSD permitting decisions when EPA is
the permitting authority. In a federal PSD program (PSD FIP) such as
the one currently in effect in Virginia, any member of the public who
has participated in the public comment process and meets the threshold
standing requirements of Article III of the U.S. Constitution may
petition for administrative review of the permit within 30 days of
issuance and ultimately seek judicial review of the administrative
disposition of the permit. There is no indication that Congress
intended that citizens' rights would be diminished upon the EPA
approval of a state's PSD program.
Similarly, Congress has provided citizens the ability to challenge
the failure of a major source to obtain the PSD permit required under
Part C of the CAA or the violation of such permit in Federal district
court under the citizen suit provisions of section 304(a)(3),
regardless of whether the permitting authority is the EPA or a State.
The operative language of section 304(a)(3) could be read as equivalent
to the federal New Source Review (NSR) enforcement provisions of
sections 113(a)(5) and 167, as enabling challenges to both construction
without any permit and construction without a permit that satisfies
applicable NSR requirements. The EPA believes that the better view is
that expressed in the legislative history of the 1977 Amendments, which
directed citizen challenges to State court: ``[i]n order to challenge
the legality of a permit which a State has actually issued, or proposes
to issue, under [the PSD provisions of the CAA] however, a citizen must
seek administrative remedies under the State permit consideration
process, or judicial review of the permit in State court.'' Staff of
the Subcommittee on Environmental Pollution of the Senate Committee on
Environment and Public Works, 95th Congress, 1st Session, A Section-by-
section Analysis of S. 252 and S. 253, Clean Air Act Amendments 36
(1977), reprinted in 5 Legislative History of the Clean Air Act
Amendments of 1977 (1977 Legislative History) 3892 (1977). The EPA
believes that Congress intended such opportunity for state judicial
review of PSD permit actions to be available to permit applicants and
at least those members of the public who can satisfy threshold standing
requirements under Article III of the Constitution.
Currently, under the PSD FIP in effect in Virginia, a Virginia
citizen can petition EPA to conduct an administrative review of a PSD
permit issued by Virginia (under a delegation agreement with EPA) and
seek judicial review of the final permitting action in federal court.
In sharp contrast, section 10-1.1318(B) of the Code of Virginia extends
the right to seek judicial review only to persons who have suffered an
``actual, threatened, or imminent injury * * *'' where ``such injury is
an invasion of an immediate, legally protected, pecuniary and
substantial interest which is concrete and particularized * * *'' The
Virginia statute, as well as Virginia case law, does not enable any
member of the public who participated in the public comment process on
a PSD permit and who meets the threshold standing requirements of
Article III of the Constitution to obtain judicial review of the permit
in the Commonwealth's court system.
The limited judicial review in Virginia thus does not meet the
minimum requirements for standing for judicial review required for PSD
SIP programs under the CAA and EPA's implementing regulations.
Therefore, the EPA is proposing to disapprove Virginia's PSD submittal.
The EPA solicits comment on this view, and, in the alternative,
proposes to approve the submittal should EPA conclude that such
judicial standing is not required for approval of a PSD SIP.
EPA has noted that some of Virginia's definitions do not conform
with the Clean Air Act Amendments (CAAA) of 1990, although they do
conform with federal regulations. EPA does not believe that this
affects the decision-making process for this proposed rulemaking
action. EPA is currently in the process of making changes to federal
regulations at 40 CFR parts C and D to comply with the CAAA. When EPA
promulgates changes to the PSD regulations, all states will be required
to comply with the new federal regulations, either through SIP
revisions or updated delegation agreements. Specific timetables for
those changes will be included in the rulemaking notice.
EPA's review of this material indicates that, with the exception of
the issue highlighted above, Virginia's regulations and procedures are
sufficient to implement and enforce a PSD program. A more detailed
evaluation of Virginia's regulations for PSD can be found, in this
rulemaking's docket file, in a memorandum entitled ``Revision to the
Commonwealth of Virginia Implementation Plan for Prevention of
Significant Deterioration of Air Quality--Technical Support Document''.
Copies of that document are available upon request from the EPA
regional office listed in the Addresses section of this notice.
Proposed Action
If the Agency determines, after reviewing public comment on this
issue, that Virginia's PSD program must provide access to judicial
review on a PSD permit to any party who participates in the public
comment process and who meets the threshold standing requirements of
Article III of the U.S. Constitution, EPA will disapprove the SIP
revision submitted
[[Page 1883]]
by Virginia. Alternatively, if the Agency determines, after reviewing
public comment on this proposal, that provisions for judicial review
are unnecessary, and that Virginia's PSD program, with the exception of
the PM-10 and modeling guideline provisions, meets the requirements of
the CAA applicable to state PSD Programs, EPA will conditionally
approve the SIP revision. In order to correct the deficiencies,
Virginia must amend the Virginia Regulations and AQP-11 to meet the
current federal PSD requirements at 40 CFR part 51 by addressing the
PM-10 and modeling guideline provisions. The program amendments must be
submitted within one year of conditional approval. If Virginia fails to
revise and submit the amendments within one year, the conditional
approval will convert to a disapproval.
EPA is soliciting public comments on Virginia's SIP submittal, and,
in particular, on the issues discussed in this notice. These comments
will be considered before taking final action. Interested parties may
submit written comments to the EPA Regional office listed in the
Addresses section of this notice.
EPA is proposing to disapprove or, in the alternative,
conditionally approve Virginia's request to revise the Commonwealth's
SIP to include Virginia Regulation for the Control and Abatement of Air
Pollution, Sec. 120-08-02, permits for major sources and major
modifications located in prevention of significant deterioration areas,
and Appendix L, prevention of significant deterioration areas; and Air
Quality Program Policies and Procedures for Implementation of
Prevention of Significant Deterioration (PSD) of Air Quality Program,
AQP-11. EPA is also proposing to disapprove or, in the alternative,
conditionally approve supplementary revisions to Sec. 120-01-02,
Sec. 120-08-02, and Appendix L. For conditional approval, Virginia must
amend the program as specified above to satisfy the applicable federal
PSD requirements of 40 CFR part 51, subpart I. With the exception of
the PM-10 requirements, the Commonwealth will have authority to
implement and enforce the PSD program through its SIP, and the
delegation agreement will be terminated. EPA will retain authority
under 40 CFR Sec. 52.21, for implementing and enforcing all Virginia
PSD permits, or portions thereof, involving requirements related to PM-
10 until a SIP revision for PM-10 increments and modeling guidelines is
approved. EPA's current delegation of authority to Virginia to issue
PSD permits will remain in effect insofar, and only insofar, as PSD
requirements pertaining to PM-10 are concerned. If Virginia later
submits, as the October 16, 1995 ``Notice of Intended Regulatory
Action'' indicates, and receives EPA approval of a revision to the
Virginia PSD SIP incorporating the PM-10 increments and modeling
provisions, the delegation agreement will be completely terminated.
If these revisions to the PSD requirements of the Virginia SIP are
approved, EPA will continue to oversee implementation of this important
program by reviewing and commenting on proposed permits with respect to
applicable statutory and regulatory provisions and guidance. Also, EPA
will implement and enforce the PM-10 increment standards until such
time as EPA receives and approves a revision to the Virginia SIP
incorporating those standards into the SIP. If a final permit is issued
which still does not reflect consideration of the relevant factors, EPA
may deem the permit inadequate for purposes of implementing the
requirements of the Act and Virginia's SIP, and may consider
enforcement action under sections 113 and 167 of the Act to address the
permit deficiency.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP disapprovals or conditional approvals under section 110 and
subchapter I, Part D of the Clean Air Act do not create any new
requirements but simply approve requirements that the State is already
imposing. Therefore, because the Federal SIP disapproval or approval in
this situation does not impose any new requirements, the Administrator
certifies that it does not have a significant impact on any small
entities affected. Moreover, due to the nature of the Federal-State
relationship under the CAA, preparation of a flexibility analysis would
constitute Federal inquiry into the economic reasonableness of state
action. The Clean Air Act forbids EPA to base its actions concerning
SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246,
255-66 (1976); 42 U.S.C. 7410(a)(2).
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposal or
final that includes a Federal mandate that may result in estimated
costs to state, local or tribal governments in the aggregate; or to the
private sector, of $100 million or more. Under section 205, EPA must
select the most cost-effective and least burdensome alternative that
achieves the objectives of the rule and is consistent with statutory
requirements. Section 203 requires EPA to establish a plan for
informing and advising any small governments that may be significantly
or uniquely impacted by the rule. This federal action disapproves, or
conditionally approves pre-existing requirements. Accordingly, no
additional costs to state, local, or tribal governments, or to the
private sector, result from this action.
The Administrator's decision to disapprove, or in the alternative,
to conditionally approve Virginia's SIP revision for the Prevention of
Significant Deterioration Program will be based on whether it meets the
applicable requirements of the Clean Air Act and of the EPA regulations
in 40 CFR part 51.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides.
Authority: 42 U.S.C. 7401-7671q.
Dated: December 15, 1995.
Stanley L. Laskowski,
Acting Regional Administrator, Region III.
[FR Doc. 96-1051 Filed 1-23-96; 8:45 am]
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