[Federal Register Volume 76, Number 99 (Monday, May 23, 2011)]
[Proposed Rules]
[Pages 29686-29688]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-12515]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2010-0856; FRL-9308-2]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Permits for Major Stationary Sources and Major Modifications 
Locating in Prevention of Significant Deterioration (PSD) Areas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) 
revision submitted by the Virginia Department of Environmental Quality 
(VADEQ). This revision pertains to EPA's proposal to approve the 
addition of nitrogen oxides (NOX) as a precursor to ozone in 
the Virginia SIP that governs permits for constructing or significantly 
modifying facilities located in areas attaining the national ambient 
air quality standards (NAAQS). This action is being taken under the 
Clean Air Act (CAA).

DATES: Written comments must be received on or before June 22, 2011.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2010-0856 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: [email protected].
    C. Mail: EPA-R03-OAR-2010-0856, Kathleen Cox, Associate Director, 
Office of Permits and Air Toxics, Mailcode 3AP10, U.S. Environmental 
Protection Agency, Region III, 1650 Arch Street, Philadelphia, 
Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2010-0856. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., 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 in http://www.regulations.gov or in hard copy during normal business hours at the 
Air Protection Division, U.S. Environmental Protection Agency, Region 
III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the 
Virginia submittal are available at the VADEQ Office, 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: Throughout this document, whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. On June 7, 2010, the VADEQ 
submitted a revision to the Virginia SIP for including NOX 
as a precursor to ozone for permits of major stationary

[[Page 29687]]

sources or major modifications locating in areas in Virginia that are 
attaining the NAAQS, also known as Prevention of Significant 
Deterioration (PSD) areas.

I. Background

    We are proposing approval of Virginia's SIP submission dated June 
7, 2010 which addresses regulatory changes needed to be equivalent to 
the CAA's part C PSD permit program. This SIP submission also corrects 
deficiencies identified by EPA in the March 27, 2008 Federal Register 
action entitled, ``Completeness Findings for Section 110(a) State 
implementation Plans for the 8-hour ozone National Ambient Air Quality 
Standards (1997 Ozone NAAQS)'' (73 FR 16205). EPA's proposed approval 
of this SIP submission addresses Virginia's compliance with the portion 
of CAA Section 110(a)(2)(C) & (J) relating to the CAA's part C PSD 
permit program for the 1997 Ozone NAAQS, because this proposed approval 
would approve regulating NOX as a precursor to ozone in 
Virginia's SIP in accordance with the Federal Register action dated 
November 29, 2005 (70 FR 71612) that finalized NOX as a 
precursor for ozone regulations set forth at 40 CFR 51.166 and in 40 
CFR 52.21.

II. Summary of SIP Revision

    VADEQ's regulations adding NOX as a precursor to ozone 
establish a construction permit program consistent with the Federal 
CAA's Title I program and implementing regulations at 40 CFR 51.166, 
``Prevention of Significant Deterioration of Air Quality.'' VADEQ's 
regulation 9VAC5 Chapter 80, Article 8 is part of the SIP and sets 
forth the criteria and procedures for major stationary sources to 
obtain a permit to construct, operate and/or modify a major stationary 
source.
    We are proposing to fully approve the regulatory citation changes 
which became effective in Virginia on December 31, 2008, as referenced 
here in this document and in the Virginia Code of Regulations 9VAC5 
Chapter 80, Article 8, sections 5-80-1615 and 5-80-1695 which establish 
NOX as a precursor to ozone, into the Virginia SIP. These 
proposed changes will add NOX as a precursor to ozone, in 
addition to volatile organic compounds (VOC), in the definitions of 
``major modification'', ``major stationary source'', ``regulated New 
Source Review (NSR) pollutant'' and ``significant'' and to the list of 
exempted facilities.
    Previously, EPA had issued an ``limited approval'' of Virginia's 
PSD regulations (9VAC5 Chapter 80, Article 8) for reasons that will not 
deny this action as being fully approved. The ``limited approval'' 
issues can be found in the Technical Support Document contained in this 
Docket or in the Federal Register action dated October 22, 2008 (73 FR 
62897).

III. 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 
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 
``regarding 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 to 
the extent consistent with requirements imposed by Federal law, any 
person making a voluntary disclosure of information to a state agency 
regarding a violation of an environmental statute, regulation, permit, 
or administrative order is granted immunity from administrative or 
civil penalty. The Attorney General's January 12, 1998 opinion states 
that the quoted language renders this statute inapplicable to 
enforcement of any Federally authorized programs, since no immunity 
could be afforded from administrative, civil, or criminal penalties 
because granting such immunity would not be consistent with Federal 
law, which is one of the criteria for immunity.
    Therefore, EPA has determined that Virginia's Privilege and 
Immunity statutes will not preclude the Commonwealth from enforcing its 
PSD program consistent with the Federal requirements. In any event, 
because EPA has also determined that a state audit privilege and 
immunity law can affect only state enforcement and cannot have any 
impact on Federal enforcement authorities, EPA may at any time invoke 
its authority under the CAA, including, for example, sections 113, 167, 
205, 211 or 213, to enforce the requirements or prohibitions of the 
state plan, independently of any state enforcement effort. In addition, 
citizen enforcement under section 304 of the CAA is likewise unaffected 
by this, or any, state audit privilege or immunity law.

IV. Proposed Action

    Our review of Virginia's SIP revision request indicates that our 
proposed approval of this SIP revision is warranted. As previously 
noted, these changes to the Virginia program are found in the Virginia 
Code at 9VAC5 Chapter 80, Article 8, Permits for Major Stationary 
Sources and Major Modifications Locating in Prevention of Significant 
Deterioration Areas.
    This proposed SIP approval for sections 5-80-1615 and 5-80-1695 
which addresses regulatory changes needed to be equivalent to the CAA's 
part C PSD permit program. It will also correct deficiencies identified 
by EPA in the March 27, 2008 Federal Register action entitled, 
``Completeness Findings for Section 110(a) State implementation Plans 
for the 8-hour Ozone National Ambient Air Quality Standards (1997 Ozone 
NAAQS)'' (73 FR 16205). EPA's proposed approval of this SIP

[[Page 29688]]

submission addresses Virginia's compliance with the portion of CAA 
Section 110(a)(2)(C) & (J) relating to the CAA's part C PSD permit 
program for the 1997 Ozone NAAQS, because this proposed approval would 
approve regulating NOX as a precursor to ozone in Virginia's 
SIP in accordance with the Federal Register action dated November 29, 
2005 (70 FR 71612) that finalized NOX as a precursor for 
ozone regulations set forth at 40 CFR 51.166 and in 40 CFR 52.21.
    We are proposing to fully approve the Virginia SIP revision request 
for these changes only. Prior ``limited approval'' of certain aspects 
of Virginia's PSD program elements remain valid. A description of these 
items for ``limited approval'' can be found in the Technical Support 
Document contained in this Docket or in the Federal Register action 
dated October 22, 2008 (73 FR 62897). EPA is soliciting public comments 
on the issues discussed for this proposed approval document only. These 
comments will be considered before taking final action.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely proposes to approve state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this proposed rule to include NOX as a 
precursor to ozone in Virginia does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements.

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

    Dated: April 25, 2011.
James W. Newson,
Acting Regional Administrator, Region III.
[FR Doc. 2011-12515 Filed 5-20-11; 8:45 am]
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