[Federal Register Volume 77, Number 245 (Thursday, December 20, 2012)]
[Rules and Regulations]
[Pages 75380-75383]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-30585]



[[Page 75380]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2011-0926; FRL-9763-4]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Permits for Major Stationary Sources and Major Modifications 
Locating in Prevention of Significant Deterioration Areas and Permits 
for Major Stationary Sources Locating in Nonattainment Areas or the 
Ozone Transport Region

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 Virginia Department of Environmental Quality (VADEQ). 
These revisions allow the terms and conditions of various elements of 
the preconstruction program in Virginia to be combined into a single 
permit, establish limitations for issuance of Plantwide Applicability 
Limits (PALs), provide clarification to the exemption to Virginia's 
permitting rules regarding the use of alternate fuels and make minor 
administrative amendments. This action is being taken under the Clean 
Air Act (CAA).

DATES: This final rule is effective on January 22, 2013.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2011-0926. All documents in the docket are listed in 
the 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 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: Gerallyn Duke, (215) 814-2084, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On September 7, 2012 (77 FR 55168), EPA published a notice of 
proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR 
proposed approval of amendments to Virginia's Prevention of Significant 
Deterioration (PSD) and nonattainment New Source Review (NSR) programs 
to allow the terms and conditions of various elements of the 
preconstruction permit program in Virginia to be combined into a single 
permit, establish limitations for issuance of Plantwide Applicability 
Limits (PALs), and clarify exemptions to Virginia's permitting rules 
regarding the use of alternate fuels. The formal SIP revision was 
submitted by Virginia on September 27, 2010.
    The SIP revision will allow preconstruction permits for major 
stationary sources to be combined into one permit with certain 
restrictions and conditions. Each action to combine permit terms and 
conditions must include a statement referencing the origin of each term 
or condition in the combined permit, its effective date and whether it 
is state and/or Federally enforceable. All terms and conditions of 
contributing permits must be included in the combined permit without 
change, with certain exceptions, and the combined permit will supersede 
the contributing permit.
    In addition, the SIP revision establishes state operating permits 
as the sole mechanism for issuing PAL permits. On December 31, 2002 (67 
FR 80186), EPA published final rule changes to 40 CFR parts 51 and 52 
regarding the CAA's PSD and nonattainment NSR programs that are 
collectively known as NSR Reform. These changes included provisions 
that would allow major stationary sources to comply with a PAL to avoid 
having a significant emissions increase that triggers the requirements 
of the major NSR program. The proposed SIP revision would limit 
establishing PALs to state operating permits and no longer allow PALs 
to be established through major or minor NSR permits.
    In 2008, the Virginia General Assembly amended Va. Code Sec. 
10.1322.4 to allow exemptions for alternative fuels and raw materials 
from permit requirements. The SIP revision updates and restructures the 
exemptions to ensure that there are no conflicts between the Virginia 
Code and Federal regulations, including the SIP.

II. Summary of SIP Revision

    This SIP revision consists of revisions to the VADEQ regulations at 
9VAC5 Chapter 80, Article 8 (Permits for Major Stationary Sources and 
Major Modifications Locating in Prevention of Significant Deterioration 
Areas) and Article 9 (Permits for Major Stationary Sources and 
Modifications Locating in Nonattainment Areas or the Ozone Transport 
Region). The following regulations under Article 8 are revised: 5-80-
1615 (Definitions), 5-80-1625 (General), 5-80-1695 (Exemptions), 5-80-
1925 (Changes to permits), 5-80-1935 (Administrative permit 
amendments), 5-80-1945 (Minor permit amendments), 5-80-1955 
(Significant amendment procedures), and 5-80-1965 (Reopening for 
cause). Under Article 9, Regulations 5-80-2010 (Definitions), 5-80-2020 
(General), 5-80-2140 (Exemptions), 5-80-2200 (Changes to permits), 5-
80-2210 (Administrative permit amendments), 5-80-2220 (Minor permit 
amendments), 5-80-2230 (Significant amendment procedures) and 5-80-2240 
(Reopening for cause) are amended. Under Article 8, Regulation 5-80-
1915 (Actions to combine permit terms and conditions) is added and 
under Article 9, Regulation 5-80-2195 (also called ``Actions to combine 
permit terms and conditions'') is added.
    EPA is approving Virginia's SIP submission dated September 27, 2010 
that consists of the following actions that pertain to Virginia's PSD 
and nonattainment NSR Programs: (1) Adding provisions to allow the 
terms and conditions of the various elements of the NSR Program to be 
combined into a single permit; (2) establishing state operating permits 
as the sole mechanism for issuing PALs; (3) clarifying certain 
exemptions from permitting for alternative fuels to ensure no conflict 
with federal law and regulation; and (4) making minor administrative 
amendments.

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

[[Page 75381]]

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 Llaw, 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 and nonattainment NSR programs 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 the regulations 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.

IV. Final Action

    EPA is approving the September 27, 2010 SIP submission pertaining 
to Virginia's PSD and nonattainment NSR programs.

V. 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 February 19, 2013. 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

[[Page 75382]]

regarding Virginia's PSD and NSR permit programs 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, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: December 10, 2012.
Shawn M. Garvin,
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 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 Chapter 80, Sections 5-80-1615, 5-80-1625, 
and 5-80-1695.
0
b. Adding an entry for Chapter 80, Section 5-80-1915, after the 
existing entry for 5-80-1865.
0
c. Revising the entries for Chapter 80, Sections 5-80-1925, 5-80-1945, 
5-80-1955, 5-80-1965, 5-80-2010, 5-80-2020, and 5-80-2140.
0
d. Adding an entry for Chapter 80, Section 5-80-2195, after the 
existing entry for 5-80-2190.
0
e. Revising the entries for Chapter 80, Sections 5-80-2200, 5-80-2210, 
5-80-2220, 5-80-2230, and 5-80-2240.
    The amendments 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 SIP
                                                    date                                        citation]
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                         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
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
5-80-1615...............  Definitions........         7/23/09  12/20/12 [Insert page    Revised 2 terms.
                                                                number where the
                                                                document begins].
5-80-1625...............  General............         7/23/09  12/20/12 [Insert page    Revised.
                                                                number where the
                                                                document begins].
 
                                                  * * * * * * *
5-80-1695...............  Exemptions.........         7/23/09  12/20/12 [Insert page    Revised.
                                                                number where the
                                                                document begins].
 
                                                  * * * * * * *
5-80-1915...............  Actions to combine          7/23/09  12/20/12 [Insert page    New.
                           permit terms and                     number where the
                           conditions.                          document begins].
5-80-1925...............  Actions to change           7/23/09  12/20/12 [Insert page    Revised.
                           permits.                             number where the
                                                                document begins].
 
                                                  * * * * * * *
5-80-1945...............  Minor permit                7/23/09  12/20/12 [Insert page    Revised.
                           amendments.                          number where the
                                                                document begins].
5-80-1955...............  Significant                 7/23/09  12/20/12 [Insert page    Revised.
                           amendment                            number where the
                           procedures.                          document begins].
5-80-1965...............  Reopening for cause         7/23/09  12/20/12 [Insert page    Revised.
                                                                number where the
                                                                document begins].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
 Article 9 Permits--Major Stationary Sources and Major Modifications Located in Nonattainment Areas or the Ozone
                                                Transport Region
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
5-80-2010...............  Definitions........         7/23/09  12/20/12 [Insert page    Revised 2 terms.
                                                                number where the
                                                                document begins].
5-80-2020...............  General............         7/23/09  12/20/12 [Insert page    Revised.
                                                                number where the
                                                                document begins].
 

[[Page 75383]]

 
                                                  * * * * * * *
5-80-2140...............  Exemptions.........         7/23/09  12/20/12 [Insert page    Revised.
                                                                number where the
                                                                document begins].
 
                                                  * * * * * * *
5-80-2195...............  Actions to combine          7/23/09  12/20/12 [Insert page    New.
                           permit terms and                     number where the
                           conditions.                          document begins].
5-80-2200...............  Actions to change           7/23/09  12/20/12 [Insert page    Revised.
                           permits.                             number where the
                                                                document begins].
5-80-2210...............  Administrative              7/23/09  12/20/12 [Insert page    Revised.
                           permit amendments.                   number where the
                                                                document begins].
5-80-2220...............  Minor permit                7/23/09  12/20/12 [Insert page    Revised.
                           amendments.                          number where the
                                                                document begins].
5-80-2230...............  Significant                 7/23/09  12/20/12 [Insert page    Revised.
                           amendment                            number where the
                           procedures.                          document begins].
5-80-2240...............  Reopening for cause         7/23/09  12/20/12 [Insert page    Revised.
                                                                number where the
                                                                document begins].
 
                                                  * * * * * * *
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* * * * *
[FR Doc. 2012-30585 Filed 12-19-12; 8:45 am]
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