[Federal Register Volume 76, Number 171 (Friday, September 2, 2011)]
[Rules and Regulations]
[Pages 54706-54708]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-22448]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2010-0856; FRL-9459-1]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the Commonwealth of Virginia. The revision establishes the 
addition of nitrogen oxides (NOX) as a precursor to ozone in 
Virginia for permits of major stationary sources or major modifications 
locating in Prevention of Significant Deterioration (PSD) areas. EPA is 
approving the addition of NOX as a precursor to ozone based 
on the Virginia regulations dated December 31, 2008. A previous PSD 
program approval of Virginia's Chapter 80, Article 8 regulations was 
provided to the Commonwealth as a ``limited approval'' for reasons that 
will not deny this action as being fully approved. This revision to add 
NOX as a precursor to ozone is in accordance with the 
requirements of the Clean Air Act (CAA).

DATES: This final rule is effective on October 3, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2010-0856. 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 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

    Throughout this document, whenever ``we,'' ``us,'' or ``our'' is 
used, we mean EPA. On May 23, 2011 (76 FR 29686), EPA published a 
notice of proposed rulemaking (NPR) for the Commonwealth of Virginia. 
The NPR proposed approval of including NOX as a precursor to 
ozone for permitting and the construction of new major stationary 
sources and the significant modification of existing major stationary 
sources of air pollutants in areas designated attainment or non-
classifiable for the National Ambient Air Quality Standards (NAAQS) in 
Virginia. The formal SIP revision was submitted by Virginia on June 7, 
2010.
    This approval establishes 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. Virginia's regulations adding NOX as a 
precursor to ozone establishes 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.
    Previously, EPA had issued a ``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).

II. Summary of SIP Revision

    Our review of Virginia's SIP revision request indicates that our 
approval of this SIP revision is warranted. 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. EPA is 
approving NOX as a precursor to ozone in addition to VOCs in 
the definitions of ``major modification'', ``major stationary source'', 
``regulated New Source Review (NSR) pollutant'' and ``significant'' and 
to the list of exempted facilities as a revision to the Virginia SIP.
    This SIP approval for 9VAC5-80-1615 and 9VAC5-80-1695 addresses 
regulatory changes needed to be equivalent to the CAA's part C PSD 
permit program. It 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 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 approval will allow 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 fully approving these 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.

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

[[Page 54707]]

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 ``[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 CAA is likewise unaffected 
by this, or any, state audit privilege or immunity law.
    Other specific requirements of NOX as a precursor to 
ozone 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.

III. Final Action

    EPA is approving the addition of NOX as a precursor to 
ozone for PSD as a revision to the Virginia SIP.

IV. 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 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 rule 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.

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 November 1, 2011. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the

[[Page 54708]]

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 to approve 
NOX as a precursor to ozone in Virginia 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements.

    Dated: August 22, 2011.
W.C. Early,
Acting, Regional Administrator, Region III.

    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 revising 
the entries for Sections 5-80-1615 and 5-80-1695 to read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

                                 EPA-Approved Virginia Regulations and Statutes
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                                                             State                           Explanation [former
          State citation              Title/subject     effective date   EPA approval date      SIP citation]
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                                                  * * * * * * *
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                               9 VAC 5, Chapter 80 Permits for Stationary Sources
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                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
  Article 8 Permits for Major Stationary Sources and Major Modifications Locating in Prevention of Significant
                                            Deterioration (PSD) Areas
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                                                  * * * * * * *
5-80-1615........................  Definitions........        12/31/08  9/2/11 [Insert page  Adds NOX as a
                                                                         number where the     precursor to
                                                                         document begins].    ozone. Limited
                                                                                              approval remains
                                                                                              in effect.
 
                                                  * * * * * * *
5-80-1695........................  Exemptions.........        12/31/08  9/2/11 [Insert page  Adds NOX as a
                                                                         number where the     precursor to
                                                                         document begins].    ozone. Limited
                                                                                              approval remains
                                                                                              in effect.
 
                                                  * * * * * * *
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[FR Doc. 2011-22448 Filed 9-1-11; 8:45 am]
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