[Federal Register Volume 73, Number 205 (Wednesday, October 22, 2008)]
[Rules and Regulations]
[Pages 62897-62902]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25014]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2007-0521; FRL-8731-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Virginia Major New Source Review, Prevention of Significant 
Deterioration (PSD)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is granting limited approval of a State Implementation 
Plan (SIP) revision submitted by the Commonwealth of Virginia. This 
revision action establishes the limited approval of a State 
Implementation Plan (SIP) revision submitted by the Commonwealth of 
Virginia on October 10, 2006. The intended effect of this action is to 
grant limited approval of the September 1, 2006 regulatory amendments 
to Virginia's existing new source review permit program for owners of 
sources located or locating in prevention of significant deterioration 
(PSD) areas. This action is being taken under the Clean Air Act (CAA or 
the Act).

DATES: Effective Date: This final rule is effective on November 21, 
2008.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2007-0521. All documents in the docket are listed in 
the http://www.regulations.gov Web site. Although listed in the 
electronic docket, some information is not publicly available, i.e., 
confidential business information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through http://www.regulations.gov or in hard copy for public inspection during

[[Page 62898]]

normal business hours at the Air Protection Division, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103. Copies of the State submittal are 
available at the Virginia Department of Environmental Quality, 629 East 
Main Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Sharon McCauley, (215) 814-3376, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On June 27, 2008 (73 FR 36481), EPA published a notice of proposed 
rulemaking (NPR) proposing limited approval of amendments to Virginia's 
existing new source review permit program for owners of sources located 
or locating in prevention of significant deterioration (PSD) areas. The 
formal SIP revision request was submitted by Virginia on October 10, 
2006.
    The request consisted of changes to Legislative Rules 9 VAC 5 
Chapter 50, Article 4--Stationary Sources and 9 VAC 5 Chapter 80, 
Article 8--Permits for Construction and Major Modification of Major 
Stationary Sources of Air Pollution for the Prevention of Significant 
Deterioration. These rules were adopted by the Commonwealth of Virginia 
State Air Pollution Control Board on June 21, 2006 and became effective 
September 1, 2006. The Commonwealth adopted the regulations in order to 
meet the relevant plan requirements of 40 CFR 51.166. Other specific 
requirements of this SIP revision and the rationale for EPA's proposed 
action are explained in the NPR and will not be restated here. No 
public comments were received on the NPR.
    In this action, EPA is granting limited approval of the changes 
found in Chapter 50, Article 4 and Chapter 80, Article 8. Virginia also 
submitted changes to 9 VAC Chapter 80 Article 6--Permits for New and 
Modified Stationary Sources as part of the SIP revision. However, as 
stated in the NPR, EPA is not taking any action on Article 6 at this 
time.

II. Summary of SIP Revision

What is being addressed in this document?

    Virginia currently has an EPA-approved NSR program for new and 
modified sources. In this action, EPA is granting limited approval of 
the Virginia pre-construction permitting program as submitted on 
October 10, 2006 for sources located or locating in PSD areas.

Why is Virginia changing its New Source Review program?

    In EPA's December 2002 regulatory new source review reform action, 
EPA changed many aspects of the regulations governing the PSD and 
nonattainment NSR programs collectively referred to as ``NSR''. 
Virginia accepted the conceptual framework of EPA's NSR reform 
revisions but tailored the program to their State-specific objectives. 
Virginia's regulations differ in some respects from EPA's regulations. 
However, these differences are not significant. EPA has concluded that 
Virginia's regulations conform to the minimum program elements in 40 
CFR 51.166 despite some variations in their rules from the federal 
program. All notable variations were described in the proposal action 
and will not be restated here.

III. Limited Approval

Why is EPA granting only ``limited approval'' of Virginia's NSR Reform 
regulations for PSD areas?

    Virginia Regulation 9 VAC 5-80-1615 added a new definition to 
reflect changes to the NSR program in the 2002 Federal NSR Reform rule. 
Virginia's definition for ``baseline actual emissions'' varies from the 
Federal definition at 40 CFR 51.166(b)(47) in two ways. First, for both 
electric generating units (EGUs) and non-EGUs, Virginia's rule allows 
the use of different baselines for different pollutants if the owner 
can demonstrate to the satisfaction of the State Air Pollution Control 
Board (Board) that a different baseline period for a different 
pollutant(s) is more appropriate due to extenuating circumstances. This 
is acceptable to EPA.
    However, for non-EGUs, the 24-month baseline period must occur 
within the five-year period preceding the date the owner begins actual 
construction or the permit application is deemed complete, whichever is 
earlier, unless the Board allows a different time period that it deems 
is more representative of normal source operations. Allowing a more 
representative time period is acceptable, however, the Commonwealth's 
regulations could be interpreted to allow this period to be established 
beyond the 10-year period allowed in the federal NSR Reform rule. As 
described in our June 27 proposed rule, Virginia regulations meet the 
general federal criteria for expanding the lookback period beyond the 
old requirement of the most recent 24-month period, and in this respect 
are consistent with federal requirements.
    EPA is granting limited approval because the language of the 
regulation does not limit the lookback period to the federally mandated 
10 years. Virginia has represented to EPA that the regulation was not 
intended to allow sources to extend the lookback period beyond 10 
years. EPA would look unfavorably upon any use of discretion by 
Virginia that would allow for baselines that exceed a 10-year lookback 
period. EPA expects Virginia to correct the definition at 9 VAC 5-80-
1615 by limiting the discretionary lookback period to 10 years. When 
Virginia makes this amendment, they may submit the revised regulations 
for consideration for full approval of the PSD program.
    Despite the fact that the Virginia PSD regulations may literally be 
construed to allow for a source to look beyond the 10 years prescribed 
by the Federal regulations, the Virginia regulations nevertheless will 
strengthen the Virginia SIP.

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

    In 1995, Virginia adopted legislation that provides, subject to 
certain conditions, for an environmental assessment (audit) 
``privilege'' for voluntary compliance evaluations performed by a 
regulated entity. The legislation further addresses the relative burden 
of proof for parties either asserting the privilege or seeking 
disclosure of documents for which the privilege is claimed. Virginia's 
legislation also provides, subject to certain conditions, for a penalty 
waiver for violations of environmental laws when a regulated entity 
discovers such violations pursuant to a voluntary compliance evaluation 
and voluntarily discloses such violations to the Commonwealth and takes 
prompt and appropriate measures to remedy the violations. Virginia's 
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and 
information about the content of those documents that are the product 
of a voluntary environmental assessment. The Privilege Law does not 
extend to documents or information (1) that are generated or developed 
before the commencement of a voluntary environmental assessment; (2) 
that are prepared independently of the assessment process; (3) that 
demonstrate a clear, imminent and substantial danger to the public 
health or environment; or (4) that are required by law.
    On January 12, 1998, the Commonwealth of Virginia Office of the

[[Page 62899]]

Attorney General provided a legal opinion that states that the 
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege 
to documents and information ``required by law,'' including documents 
and information ``required by Federal law to maintain program 
delegation, authorization or approval,'' since Virginia must ``enforce 
Federally authorized environmental programs in a manner that is no less 
stringent than their Federal counterparts * * *.'' The opinion 
concludes that ``[r]egarding Sec.  10.1-1198, therefore, documents or 
other information needed for civil or criminal enforcement under one of 
these programs could not be privileged because such documents and 
information are essential to pursuing enforcement in a manner required 
by Federal law to maintain program delegation, authorization or 
approval.''
    Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that 
``[t]o the extent consistent with requirements imposed by Federal 
law,'' any person making a voluntary disclosure of information to a 
state agency regarding a violation of an environmental statute, 
regulation, permit, or administrative order is granted immunity from 
administrative or civil penalty. The Attorney General's January 12, 
1998 opinion states that the quoted language renders this statute 
inapplicable to enforcement of any Federally authorized programs, since 
``no immunity could be afforded from administrative, civil, or criminal 
penalties because granting such immunity would not be consistent with 
Federal law, which is one of the criteria for immunity.''
    Therefore, EPA has determined that Virginia's Privilege and 
Immunity statutes will not preclude the Commonwealth from enforcing its 
PSD program consistent with the Federal requirements. In any event, 
because EPA has also determined that a state audit privilege and 
immunity law can affect only state enforcement and cannot have any 
impact on Federal enforcement authorities, EPA may at any time invoke 
its authority under the CAA, including, for example, sections 113, 167, 
205, 211 or 213, to enforce the requirements or prohibitions of the 
state plan, independently of any state enforcement effort. In addition, 
citizen enforcement under section 304 of the Clean Air Act is likewise 
unaffected by this, or any, state audit privilege or immunity law.

V. Final Action

    EPA is granting limited approval of the Virginia Major New Source 
Review regulations for facilities located or locating in PSD areas as a 
revision to the Virginia SIP. EPA has determined that the regulatory 
amendments to Virginia's PSD permit program at Chapter 50, Article 4 
and Chapter 80, Article 8, as submitted on October 10, 2006 meet the 
minimum requirements of 40 CFR 51.166 and the Clean Air Act.

VI. Statutory and Executive Order Reviews

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it 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). This rule also does not 
have tribal implications because it will not have a substantial direct 
effect on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes, 
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). 
This action also does not have Federalism implications because it does 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). 
This action merely approves a state rule implementing a Federal 
requirement, and does not alter the relationship or the distribution of 
power and responsibilities established in the Clean Air Act. This rule 
also is not subject to Executive Order 13045 (62 FR 19885, April 23, 
1997), because it approves a state rule implementing a Federal 
standard.
    In reviewing SIP submissions, EPA's role is to approve State 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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 rule 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. This rule 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 Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by December 22, 2008. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule 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 granting limited approval of the Virginia 
NSR program for sources locating or located in PSD areas may not be 
challenged later in proceedings to enforce its requirements. (See 
section 307(b)(2).)

[[Page 62900]]

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: October 9, 2008.
William T. Wisniewski,
Acting Regional Administrator, Region III.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for 40 CFR part 52 continues to read as 
follows:

     Authority: 42 U.S.C. 7401 et seq.

Subpart VV--Virginia

0
2. In Sec. 52.2420, the table in paragraph (c) is amended by
0
a. Revising the entries for 5-50-250 and 5-50-280.
0
b. Removing the entries for 5-80-1700 through 5-80-1970 inclusive.
0
c. Adding entries for 5-80-1605 through 5-80-1995 inclusive.
    The additions and revisions read as follows:


Sec. 52.2420  Identification of plan.

* * * * *
    (c) * * *

                                  EPA-Approved Regulations in the Virginia SIP
----------------------------------------------------------------------------------------------------------------
  State citation  (9 VAC 5                               State                              Explanation  [former
        Chapter 80)              Title/subject      effective date    EPA approval date        SIP citation]
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                 Chapter 50 Article 4 Standards of Performance for Stationary Sources (Rule 5-4)
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
5-50-250...................  Definitions..........          9/1/06  10/22/08 [Insert page  Revised definition of
                                                                     number where the       New Source Review
                                                                     document begins].      Program. Limited
                                                                                            Approval.
 
                                                  * * * * * * *
5-50-280...................  Standards for Major            9/1/06  10/22/08 [Insert page   Changes ``Pollutant
                              Stationary Sources                     number where the       subject to
                              (Prevention of                         document begins].      regulation under the
                              Significant                                                   federal Clean Air
                              Deterioration Areas).                                         Act'' to ``Regulated
                                                                                            NSR pollutant''.
                                                                                            Limited Approval.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
  Chapter 80 Article 8, Permits for Major Stationary Sources and Major Modifications Locating in Prevention of
                                         Significant Deterioration Areas
----------------------------------------------------------------------------------------------------------------
5-80-1605..................  Applicability........          9/1/06  10/22/08 [Insert page  5-80-1700. Limited
                                                                     number where the       Approval.
                                                                     document begins].
5-80-1615..................  Definitions..........          9/1/06  10/22/08 [Insert page  5-80-1710. Limited
                                                                     number where the       Approval.
                                                                     document begins].
5-80-1625..................   General.............          9/1/06  10/22/08 [Insert page  5-80-1720. Limited
                                                                     number where the       Approval.
                                                                     document begins].
5-80-1635..................  Ambient Air                    9/1/06  10/22/08 [Insert page  5-80-1730. Limited
                              Increments.                            number where the       Approval.
                                                                     document begins].
5-80-1645..................  Ambient Air Ceilings.          9/1/06  10/22/08 [Insert page  5-80-1740. Limited
                                                                     number where the       Approval.
                                                                     document begins].
5-80-1655..................  Applications.........          9/1/06  10/22/08 [Insert page  5-80-1750. Limited
                                                                     number where the       Approval.
                                                                     document begins].
5-80-1665..................  Compliance with local          9/1/06  10/22/08 [Insert page  5-80-1760. Limited
                              zoning requirements.                   number where the       Approval.
                                                                     document begins].
5-80-1675..................  Compliance                     9/1/06  10/22/08 [Insert page  5-80-1770. Limited
                              determination and                      number where the       Approval.
                              verification by                        document begins].
                              performance testing.
5-80-1685..................  Stack Heights........          9/1/06  10/22/08 [Insert page  5-80-1780. Limited
                                                                     number where the       Approval.
                                                                     document begins].
5-80-1695..................  Exemptions...........          9/1/06  10/22/08 [Insert page  New. Limited
                                                                     number where the       Approval.
                                                                     document begins].

[[Page 62901]]

 
5-80-1705..................  Control technology             9/1/06  10/22/08 [Insert page  5-80-1800. Limited
                              review.                                number where the       Approval.
                                                                     document begins].
5-80-1715..................  Source impact                  9/1/06  10/22/08 [Insert page  5-80-1810. Limited
                              analysis.                              number where the       Approval.
                                                                     document begins].
5-80-1725..................  Air quality models...          9/1/06  10/22/08 [Insert page  5-80-1820. Limited
                                                                     number where the       Approval.
                                                                     document begins].
5-80-1735..................  Air quality analysis.          9/1/06  10/22/08 [Insert page  5-80-1830. Limited
                                                                     number where the       Approval.
                                                                     document begins].
5-80-1745..................  Source Information...          9/1/06  10/22/08 [Insert page  5-80-1840. Limited
                                                                     number where the       Approval.
                                                                     document begins].
5-80-1755..................  Additional impact              9/1/06  10/22/08 [Insert page  5-80-1850. Limited
                              analysis.                              number where the       Approval.
                                                                     document begins].
5-80-1765..................  Sources affecting              9/1/06  10/22/08 [Insert page  5-80-1860. Limited
                              federal class I                        number where the       Approval.
                              areas--additional                      document begins].
                              requirements.
5-80-1775..................  Public participation.          9/1/06  10/22/08 [Insert page  5-80-1870. Limited
                                                                     number where the       Approval.
                                                                     document begins].
5-80-1785..................  Source obligation....          9/1/06  10/22/08 [Insert page  5-80-1880. Limited
                                                                     number where the       Approval.
                                                                     document begins].
5-80-1795..................  Environmental impact           9/1/06  10/22/08 [Insert page  5-80-1890. Limited
                              statements.                            number where the       Approval.
                                                                     document begins].
5-80-1805..................  Disputed permits.....          9/1/06  10/22/08 [Insert page  5-80-1900. Limited
                                                                     number where the       Approval.
                                                                     document begins].
5-80-1815..................  Interstate pollution           9/1/06  10/22/08 [Insert page  5-80-1910. Limited
                              abatement.                             number where the       Approval.
                                                                     document begins].
5-80-1825..................  Innovative control             9/1/06  10/22/08 [Insert page  5-80-1920 Limited
                              technology.                            number where the       Approval.
                                                                     document begins].
5-80-1835..................  Reserved.............          9/1/06  10/22/08 [Insert page  New. Limited
                                                                     number where the       Approval.
                                                                     document begins].
5-80-1845..................  Reserved.............          9/1/06  10/22/08 [Insert page  New. Limited
                                                                     number where the       Approval.
                                                                     document begins].
5-80-1855..................  Reserved.............          9/1/06  10/22/08 [Insert page  New. Limited
                                                                     number where the       Approval.
                                                                     document begins].
5-80-1865..................  Actuals plantwide              9/1/06  10/22/08 [Insert page  New. Limited
                              applicability (PAL).                   number where the       Approval.
                                                                     document begins].
5-80-1925..................  Changes to permits...          9/1/06  10/22/08 [Insert page  New. Limited
                                                                     number where the       Approval.
                                                                     document begins].
5-80-1935..................  Administrative permit          9/1/06  10/22/08 [Insert page  New. Limited
                              amendments.                            number where the       Approval.
                                                                     document begins].
5-80-1945..................  Minor permit                   9/1/06  10/22/08 [Insert page  New. Limited
                              amendments.                            number where the       Approval.
                                                                     document begins].
5-80-1955..................  Significant amendment          9/1/06  10/22/08 [Insert page  New. Limited
                              procedures.                            number where the       Approval.
                                                                     document begins].
5-80-1965..................  Reopening for cause..          9/1/06  10/22/08 [Insert page  New. Limited
                                                                     number where the       Approval.
                                                                     document begins].
5-80-1975..................  Transfer of permits..          9/1/06  10/22/08 [Insert page  5-80-1940. Limited
                                                                     number where the       Approval.
                                                                     document begins].

[[Page 62902]]

 
5-80-1985..................  Permit invalidation,           9/1/06  10/22/08 [Insert page  5-80-1950. Limited
                              revocation, and                        number where the       Approval.
                              enforcement.                           document begins].
5-80-1995..................  Existence of permit            9/1/06  10/22/08 [Insert page  New. Limited
                              no defense.                            number where the       Approval.
                                                                     document begins].
 
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[FR Doc. E8-25014 Filed 10-21-08; 8:45 am]
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