[Federal Register Volume 79, Number 37 (Tuesday, February 25, 2014)]
[Rules and Regulations]
[Pages 10377-10385]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-03640]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2011-0927; FRL-9906-67-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Prevention of Significant Deterioration and Nonattainment New 
Source Review; Fine Particulate Matter (PM2.5)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving 
revisions to the Virginia State Implementation Plan (SIP), submitted by 
the Virginia Department of Environmental Quality (VADEQ) on August 25, 
2011. The revisions pertaining to Virginia's Prevention of Significant 
Deterioration (PSD) program are being fully approved. EPA is granting 
limited approval to the revisions pertaining to Virginia's 
nonattainment New Source Review (NSR) program. In both cases, the 
revisions incorporate preconstruction permitting regulations for fine 
particulate matter (PM2.5) into the Virginia SIP. In 
addition, EPA is approving these revisions and portions of other 
related submissions for the purpose of determining that Virginia has 
met its statutory obligations with respect to the infrastructure 
requirements of the Clean Air Act (CAA) which relate to Virginia's PSD 
permitting program and are necessary to implement, maintain, and 
enforce the 1997 8-hour ozone and PM2.5 National Ambient Air 
Quality Standards (NAAQS), the 2006 PM2.5 NAAQS, and the 
2008 lead NAAQS. EPA is approving these revisions in accordance with 
the requirements of the CAA. 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 do not impact 
the

[[Page 10378]]

approval of the August 25, 2011 submission. A correction related to 
that prior limited approved is also included in this action.

DATES: This final rule is effective on March 27, 2014.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2011-0927. 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: David Talley, (215) 814-2117, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On August 1, 2012 (77 FR 45523), EPA published a notice of proposed 
rulemaking (NPR) for the Commonwealth of Virginia. In the NPR, EPA 
proposed approval of amendments to Virginia's major NSR permitting 
regulations under the Virginia Administrative Code (VAC) to incorporate 
requirements for PM2.5. Additionally, EPA proposed to 
approve these revisions and portions of other related submissions for 
the purpose of determining that Virginia has met its statutory 
obligations with respect to the infrastructure requirements of CAA 
section 110(a) which relate to Virginia's PSD permitting program and 
are necessary to implement, maintain, and enforce the 1997 8-hour ozone 
and PM2.5 NAAQS, the 2006 PM2.5 NAAQS, and the 
2008 lead NAAQS. The formal SIP revision request was submitted by 
Virginia on August 25, 2011.

II. Summary of SIP Revision

    Virginia's August 25, 2011 SIP submittal included revisions to the 
general definitions under Chapter 10 of 9VAC5 (specifically 9VAC5-10-
30), as well as revisions to Articles 8 (PSD) and 9 (nonattainment NSR) 
under Chapter 80 of 9VAC5. The following regulations under Article 8 
are revised: 9VAC5-80-1615 (Definitions); 9VAC5-80-1635 (Ambient Air 
Increments); 9VAC5-80-1695 (Exemptions); 9VAC5-80-1715 (Source Impact 
Analysis); and 9VAC5-80-1765 (Sources Affecting Federal Class I Areas--
Additional Requirements). Under Article 9, the regulations at 9VAC5-80-
2010 (Definitions) and 9VAC5-80-2120 (Offsets) are amended.
    As discussed in the NPR, in light of litigation EPA proposed to 
take no action with regard to the Significant Impact Level (SIL) 
regulation at paragraph A(2) of 9VAC5-80-1715 (See, 77 FR 45523). On 
January 22, 2013, the U.S. Court of Appeals for the District of 
Columbia Circuit (D.C. Circuit) in Sierra Club v. EPA (705 F.3d 458, 
469), issued a judgment that, inter alia, vacated and remanded the 
provisions at 40 CFR 51.166(k)(2), which were promulgated as part of 
the October 20, 2010 ``Prevention of Significant Deterioration for 
Particulate Matter Less than 2.5 Micrometers (PM2.5)--
Increments, Significant Impact Levels (SILs) and Significant Monitoring 
Concentrations (SMC),'' (2010 PSD PM2.5 Rule).\1\ These 
provisions were the Federal counterparts to Virginia's PM2.5 
SIL regulations at paragraph A(2) of 9VAC5-80-1715. Additionally, the 
court vacated the provisions at section 51.166(i)(5)(i)(c), which were 
the Federal counterparts to Virginia's PM2.5 SMC regulations 
at paragraph E(1) of 9VAC5-80-1695 (See, Sierra Club v. EPA, 705 F.3d 
at 469). EPA proposed approval of Virginia's PM2.5 SMC 
provisions in our NPR. In light of the court's decision, by letter 
dated February 13, 2013, Virginia officially withdrew from the August 
25, 2011 submittal the PM2.5 SIL regulation at paragraph 
A(2) of 9VAC5-80-1715, and the portion of paragraph E(1) of 9VAC5-80-
1695 pertaining to the PM2.5 SMC. Accordingly, EPA is not 
finalizing approval of these provisions. Therefore, EPA's approval with 
respect to sections 5-80-1695 and 5-80-1715 is limited to the remaining 
revisions which were not impacted by the court decision.
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    \1\ See 75 FR 64864 (October 12, 2010).
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    Subsequent to publication of the NPR, on January 4, 2013, the D.C. 
Circuit, in Natural Resources Defense Council v. EPA,\2\ issued a 
decision that remanded the EPA's 2007 and 2008 rules implementing the 
1997 PM2.5 NAAQS. The court's remand of EPA's 2008 
implementation rule, ``Implementation of New Source Review (NSR) 
Program for Particulate Matter Less Than 2.5 Micrometers 
(PM2.5)'' (referred to herein as ``the 2008 NSR 
PM2.5 Rule''),\3\ is relevant to this final rulemaking. This 
rule promulgated NSR requirements for implementation of 
PM2.5 in both nonattainment areas (nonattainment NSR) and 
attainment/unclassifiable areas (PSD). The court found that EPA erred 
in implementing the PM2.5 NAAQS pursuant to the general 
implementation provisions of subpart 1 of part D of title I of the CAA, 
rather than pursuant to the additional implementation provisions 
specific to particulate matter nonattainment areas in subpart 4. The 
court ordered the EPA to ``repromulgate these rules pursuant to Subpart 
4 consistent with this opinion,'' (Id. at 437). Although the court 
declined to establish a deadline for EPA's response to the remand, EPA 
intends to promulgate new generally applicable implementation 
regulations for the PM2.5 NAAQS in accordance with the 
requirements of subpart 4. In the interim, however, states and EPA 
still need to proceed with implementation of the PM2.5 NAAQS 
in a timely and effective fashion in order to meet statutory 
obligations under the CAA and to assure the protection of public health 
intended by those NAAQS.
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    \2\ See 706 F.3d 428 (D.C. Cir. 2013).
    \3\ See 73 FR 28321 (May 16, 2008).
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    As discussed in the NPR, VADEQ's August 25, 2011 SIP submittal 
included revisions to Virginia's nonattainment NSR program consistent 
with the provisions promulgated in the 2008 NSR PM2.5 Rule. 
Specifically, under Article 9, the state submitted amendments to the 
regulations at 9VAC5-80-2010 (Definitions) and 9VAC5-80-2120 (Offsets) 
for approval into the SIP, including the PM2.5 significant 
emission rates (SERs), regulation of certain PM2.5 
precursors (SO2 and NOX), the regulation of 
PM10 and PM2.5 condensable emissions, and the 
emissions offset requirements. In light of the D.C. Circuit's remand of 
the 2008 NSR PM2.5 Rule and for the reasons explained below, 
EPA is not prepared at this time to grant full approval to VADEQ's 
August 25, 2011 submittal as to these elements.
    EPA is in the process of evaluating the requirements of subpart 4 
as they pertain to nonattainment NSR. In particular, subpart 4 includes 
section 189(e) of the CAA, which requires the control of major 
stationary sources of PM10 precursors (and hence under the 
court decision, PM2.5 precursors) ``except where the 
Administrator determines that such sources do not contribute 
significantly to PM10 levels which exceed the standard in 
the area.''

[[Page 10379]]

The evaluation of which precursors need to be controlled to achieve the 
standard in a particular area is typically conducted in the context of 
the state's preparing and the EPA's reviewing of an area's attainment 
plan SIP. In this case, there is only one designated PM2.5 
nonattainment area in the State, the Virginia portion of the 
Washington, DC-MD-VA nonattainment area for the 1997 annual 
PM2.5 NAAQS. Virginia submitted an attainment plan for this 
area on April 4, 2008.
    On January 12, 2009, EPA finalized a clean data determination for 
the area, (74 FR 1146), which suspended the requirement for the state 
to submit, among other things, an attainment plan SIP for the area. 
Accordingly, on January 23, 2012, Virginia withdrew the attainment plan 
SIP, and it is no longer before EPA. As EPA does not have before it the 
state's analysis as to which precursors need to be controlled in the 
area as contained in the attainment plan SIP, it cannot fully approve 
as complying with the CAA a nonattainment NSR SIP that only addresses a 
subset of the scientific PM2.5 precursors recognized by EPA.
    On the other hand, while VADEQ's submittal may not yet contain all 
of the elements necessary to satisfy the CAA requirements when 
evaluated under subpart 4, the revisions represent a considerable 
strengthening of Virginia's currently approved nonattainment NSR SIP 
which does not address PM2.5 at all. Therefore, EPA is 
granting limited approval to the nonattainment NSR provisions in 
VADEQ's August 25, 2011 submittal.
    For the reasons explained above, EPA is not evaluating at this time 
whether Virginia's submittal will require additional revisions to 
satisfy the subpart 4 requirements. Once EPA re-promulgates the Federal 
PM2.5 regulations with respect to nonattainment NSR 
permitting in response to the court's remand, EPA will consider whether 
a limited disapproval should also be finalized. Moreover, Virginia has 
submitted a request to redesignate the nonattainment area, which, if 
granted, would absolve the State of any further obligation to comply 
with the subpart 4 requirements for nonattainment NSR as to this area. 
Alternatively, VADEQ can obtain full approval by, if necessary, 
revising its regulations accordingly to address EPA's revised 
regulations and submitting them to EPA as a formal SIP revision.
    As previously discussed, VADEQ's August 25, 2011 SIP submittal also 
includes revisions to Virginia's PSD program consistent with the 
provisions promulgated in the 2008 NSR PM2.5 Rule. 
Specifically, under Article 8, the following regulations are revised 
(with the previously noted exceptions): 9VAC5-80-1615 (Definitions); 
9VAC5-80-1635 (Ambient Air Increments); 9VAC5-80-1695 (Exemptions); 
9VAC5-80-1715 (Source Impact Analysis); and, 9VAC5-80-1765 (Sources 
Affecting Federal Class I Areas--Additional Requirements). As the 
requirements of subpart 4 only pertain to nonattainment areas, it is 
EPA's position that the portions of the 2008 NSR PM2.5 Rule 
that address requirements for PM2.5 attainment and 
unclassifiable areas are not affected by the D.C. Circuit's opinion in 
NRDC v. EPA. Moreover, EPA does not anticipate the need to revise any 
PSD requirements promulgated in the 2008 NSR PM2.5 Rule in 
order to comply with the court's decision. Accordingly, EPA's approval 
of Virginia's SIP as to the PSD requirements promulgated by the 2008 
NSR PM2.5 Rule does not conflict with the court's opinion.
    Similarly, in the NPR, EPA also proposed to approve portions of 
related infrastructure (or CAA Section 110(a)(2)) SIP submissions, for 
the purpose of determining that Virginia has met its statutory 
obligations with respect to the PSD-related infrastructure requirements 
of CAA section 110(a) for the 1997 8-hour ozone and PM2.5 
NAAQS, the 2006 PM2.5 NAAQS, and the 2008 lead NAAQS. 
Virginia submitted the related infrastructure SIP revisions on the 
following dates: November 13, 2007, December 13, 2007, July 10, 2008, 
September 2, 2008, April 1, 2011, and March 9, 2012. For the reasons 
explained above, it is also EPA's position that EPA's approval of the 
portions of the above identified Virginia's infrastructure SIPs which 
relate to compliance with the PSD requirements set forth in Sections 
110(a)(2)(C), (D)(i)(II), and (J) does not conflict with the court's 
remand of the 2008 NSR PM2.5 Rule.\4\
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    \4\ The court's decision with respect to the nonattainment NSR 
requirements promulgated by the 2008 NSR PM2.5 Rule also 
does not affect the EPA's proposed approval of the present 
infrastructure action. The EPA interprets the Act to exclude 
nonattainment area requirements, including requirements associated 
with a nonattainment NSR program, from infrastructure SIP 
submissions due 3 years after adoption or revision of a NAAQS. 
Instead, these elements are typically referred to as nonattainment 
SIP or attainment plan elements, which would be due by the dates 
statutorily prescribed under subpart 2 through 5 under part D, 
extending as far as 10 years following designations for some 
elements.
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    In addition to the proposed approval of the PSD portions of section 
110(a)(2)(D)(i)(II), EPA stated in the NPR that: ``Because Virginia has 
met its obligations with respect to the visibility requirements of 
section 110(a)(2)(D)(i)(II) by virtue of its regional haze SIP, which 
EPA took final action to approve on March 23, 2012 (77 FR 16397), EPA 
is also proposing to approve the portions of Virginia's previous 
infrastructure submittals related to the visibility requirements of 
section 110(a)(2)(D)(i)(II) for the 1997 ozone, 1997 PM2.5, 
2006 PM2.5, and 2008 lead NAAQS.''
    As discussed in Section III, below, EPA has already taken separate 
and final action to approve the portions of these identified SIP 
submittals which relate to the section 110(a)(2)(D)(i)(II) visibility 
requirements for the 1997 ozone, 1997 PM2.5, 2006 
PM2.5, and 2008 lead NAAQS. Therefore, EPA is taking no 
action on the proposed approval of the visibility requirements for 
these identified SIP submittals.\5\ EPA is only taking final action to 
approve the portions of the above identified infrastructure SIPs which 
relate to Virginia's PSD program.
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    \5\ EPA also notes there was an inadvertent, incorrect citation 
to the Virginia regional haze SIP approval in the NPR. The correct 
citation to EPA's approval of the Virginia regional haze SIP is 77 
FR 35287 (June 13, 2012) (effective July 13, 2012).
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    Other specific requirements of Virginia's August 25, 2011 SIP 
submittal and the rationale for EPA's proposed action are explained in 
the NPR and will not be restated here.

III. EPA's Response to Comments Received on the Proposed Action

    EPA received two sets of comments on the August 1, 2012 NPR. A full 
set of these comments is provided in the docket for today's final 
action. A summary of the comments and EPA's responses are provided 
herein.
    Comment: The first commenter asserted simply that the Federal 
government should not be involved in state affairs.
    EPA Response: As Congress has recognized, the regulation of air 
pollution in Virginia is not a ``state affair'' for which Virginia 
bears sole responsibility. The CAA establishes a partnership between 
state and Federal entities for the protection and improvement of the 
nation's air quality. Under CAA section 109, EPA is required to 
establish National Ambient Air Quality Standards (NAAQS) for the 
protection of public health and welfare. Subsequent to the promulgation 
(or revision) of a NAAQS, states are required by CAA section 110 to 
adopt and submit to EPA for approval, a SIP which provides for the 
implementation, maintenance, and enforcement of the NAAQS. Virginia's 
August 25, 2011 SIP

[[Page 10380]]

submittal met that requirement. In addition, section 110(a)(2)(C) 
specifically requires that state plans include a PSD and nonattainment 
NSR permit program as required in parts C and D of Title I of the Clean 
Air Act. The action being finalized today consistent with EPA's 
responsibilities under CAA section 110.
    A second commenter submitted two substantive comments. First, the 
commenter raised concerns regarding EPA's determination that Virginia 
has met its obligations with respect to the visibility requirements of 
section 110(a)(2)(D)(i)(II) by virtue of its regional haze SIP. Second, 
the commenter raised several concerns about the legality of SILs and 
SMCs, as well as Virginia's adoption of them.
    Comment 1: The commenter claimed that Virginia's regional haze SIP 
is insufficient to ensure compliance with visibility requirements under 
CAA section 110(a)(2)(D)(i)(II). The commenter stated that Virginia's 
regional haze SIP only received limited approval due to its reliance on 
the Clean Air Interstate Rule (CAIR) for best available retrofit 
technology (BART) for electric generating units. The commenter alleged 
that EPA cannot rely on Virginia's regional haze SIP for satisfying 
section 110(a)(2)(D)(i)(ii) because it did not receive full approval, 
because CAIR has been remanded by the D.C. Circuit, and because EPA 
provided no explanation for how the regional haze SIP meets the 
requirements of section 110(a)(2)(D)(i)(II) as they relate to the 1997 
ozone NAAQS, the 1997 and 2006 PM2.5 NAAQS, and the 2008 
lead NAAQS. The commenter stated that EPA should either revoke its 
approval of the Virginia regional haze SIP or, at a minimum, provide an 
explanation for how the regional haze SIP ensures visibility will be 
protected for the aforementioned NAAQS.
    Response 1: In the NPR for this rulemaking, EPA proposed to approve 
the following infrastructure SIP submittals as meeting the 
infrastructure requirements of section 110(a)(2)(D)(i)(II) (visibility 
protection): The November 13, 2007 Virginia submittal for the 1997 8-
hour ozone and PM2.5 NAAQS; the December 13, 2007 Virginia 
submittal for the 1997 8-hour ozone NAAQS; the July 10, 2008 and 
September 2, 2008 Virginia submittals for the 1997 p.m.2.5 NAAQS; the 
April 1, 2011 Virginia submittal for the 2006 p.m.2.5 NAAQS; and, the 
March 9, 2012 Virginia SIP submittal for the 2008 lead NAAQS. The 
August 2012 NPR was not the first or the most recent proposed 
rulemaking issued by EPA relating to Virginia's compliance with the 
visibility requirements set forth in Section 110(a)(2)(D)(i)(II).
    On June 13, 2012, EPA issued a final rule granting limited approval 
to the Virginia regional haze SIP (See, 77 FR 35287). In that final 
rulemaking action, EPA also approved Virginia's regional haze SIP as 
satisfying the infrastructure requirements of CAA sections 
110(a)(2)(D)(i)(II) and (J), as they relate to the 1997 8-hour ozone 
NAAQS and the 1997 and 2006 PM2.5 NAAQS. Subsequently, on 
September 24, 2013, when acting upon Virginia's infrastructure SIP for 
the 2008 lead NAAQS, EPA approved that SIP as meeting the 
infrastructure requirements of sections 110(a)(2)(D)(i)(II) and (J). 
(See, 78 FR 58462 (Sept. 24, 2013)). Most recently, EPA has proposed to 
approve Virginia's infrastructure SIPs for the 2008 ozone and 2010 
NO2 NAAQS as meeting the infrastructure requirements in 
sections 110(a)(2)(D)(i)(II) and (J) (See, 78 FR 39651 (July 2, 2013) 
(2008 ozone NAAQS) and 78 FR 47264 (August 5, 2013) (2010 
NO2 NAAQS)).
    Therefore, as part of the August 2012 NPR for this rulemaking, EPA 
inadvertently proposed to approve Virginia's previously submitted 
infrastructure SIPs as meeting the infrastructure requirements of 
section 110(a)(2)(D)(i)(II) for the 1997 8-hour ozone NAAQS, and the 
1997 and 2006 PM2.5 NAAQS. Since final action had been taken 
for this requirement during June 2012, further action was not required. 
As to EPA's approval of Virginia's compliance with the 110(a)(2) 
requirements for visibility (set forth in sections 110(a)(2)(D)(i)(II) 
and (J)) for the 2008 lead NAAQS, subsequent to the August 2012 NPR, 
EPA issued a final rulemaking on such requirements on September 24, 
2013. Because EPA has already taken separate proposed and final 
rulemaking actions to approve these elements of the Virginia SIP, EPA 
is taking no further action on its proposed approval of the visibility 
requirements of section 110(a)(2)(D)(i)(II) as they relate to the 
aforementioned NAAQS.\6\ Additionally, EPA received and responded to 
similar comments as part of some or all of these previous rulemakings. 
Therefore, EPA is not responding to the comment that Virginia's 
regional haze SIP is insufficient to ensure compliance with visibility 
requirements under CAA section 110(a)(2)(D)(i)(II), as we have already 
responded to similar comments in our other actions (See, 77 FR 35287; 
78 FR 34970; 78 FR 39651; and 78 FR 47263). As a result, EPA sees no 
need for further action or response as part of this final rulemaking.
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    \6\ EPA also notes there was an inadvertent, incorrect citation 
to its approval of the Virginia regional haze SIP in the NPR. The 
correct citation to EPA's approval of the Virginia regional haze SIP 
is 77 FR 35287 (June 13, 2012) (effective July 13, 2012).
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    Comment 2: The same commenter argued that ``Virginia's regulations 
establishing SILs and SMCs are illegal under the CAA and should be 
disapproved by EPA'' (See, Sierra Club Comments at 4). Here the 
commenter took issue with both EPA's establishing SILs and SMCs 
generally, and with the PM2.5 SILs proposed by Virginia 
specifically. First, citing to the litigation in Sierra Club v. EPA 
(D.C. Circuit, No. 10-1413), the commenter asserts that EPA lacks the 
authority to establish SILs and SMCs because they improperly allow 
sources to avoid otherwise applicable CAA requirements. The commenter 
asserted that, therefore, EPA should disapprove those portions of 
Virginia's SIP submittal pertaining to the PM2.5 SILs and 
SMCs, rather than approving the SMCs and taking no action on the SILs, 
as proposed.
    Secondly, the commenter asserted that the specific SILs at 9VAC5-
80-1715A and B should be disapproved because they do not provide VADEQ 
with sufficient discretion to require a cumulative impact analysis 
regardless of whether a source's impact is below the SIL. In addition, 
the commenter asserts that the SIL values in paragraphs A(2) and B(1) 
of section 5-80-1715 are set at different levels and could lead to 
confusion. Moreover, the commenter asserted that the SIL values in 
paragraph 5-80-1715B(1) are not sufficiently protective of Class I 
areas because, unlike the SIL values in paragraph A, paragraph B does 
not distinguish different SIL values based on area classifications. 
Finally, the commenter asserts that the thresholds in paragraph 5-80-
1715B(1) are improperly incorporated into Virginia's SIP because they 
have as their basis Appendix S of 40 CFR part 51, which applies in 
situations where EPA has not approved a state's preconstruction review 
program.
    EPA Response 2: As previously discussed, in light of the D.C. 
Circuit's vacatur of 40 CFR 51.166(k)(2) and (i)(5)(i)(c), Virginia has 
officially withdrawn the corresponding state rules with which the 
commenter takes issue from the August 25, 2011 SIP submittal. Thus, 
there is no need to further consider the commenter's assertion that EPA 
should disapprove those provisions in this rulemaking because Virginia 
no longer asks that EPA consider them for approval as part of its SIP.

[[Page 10381]]

    As to any apparent conflict between the two SIL provisions in 
Virginia's SIP submission, paragraph A(2) of 9VAC5-80-1715 has been 
withdrawn and thus the commenter's concern regarding any potential for 
confusion between the two provisions is addressed by withdrawal of one 
provision from the SIP submission.
    As to the SILs in paragraph B(1), the commenter is incorrect in the 
claim that these SIL values were only intended to apply in states 
without an EPA-approved PSD program. While it is true that those SIL 
values are published in Appendix S of 40 CFR part 51, they are also 
published in section 51.165(b)(2). Section 51.165(b) implements section 
110(a)(2)(D)(i) of the CAA and applies to sources or modifications 
locating in attainment or unclassifiable areas that would cause or 
contribute to a violation of any NAAQS in any area. This is the basis 
for their inclusion in Virginia's SIP. These SILs establish the 
threshold at or above which a new major stationary source or major 
modification will be considered to cause or contribute to a violation 
of an ambient air quality standard, and thus subject to the 
requirements in 40 CFR 51.165(b). EPA has recognized that the values in 
section 51.165(b)(2) may also be used in the PSD program to support the 
demonstration required by 40 CFR 51.165(k)(1) and section 165(a)(3) of 
the CAA that proposed construction will not cause or contribute to a 
violation of the NAAQS. However, contrary to the commenter's assertion, 
the Federal regulations set forth at section 51.165(b) do not impede a 
permitting authority's discretion to require a cumulative impact 
analysis to make the showing required by section 51.166(k)(1) and 
section 165(a)(3) of the CAA where the source's impact is below a SIL 
value in section 51.165(b). Similarly, the corresponding state 
regulation at 9VAC5-80-1715B(1) does not impede the state's permitting 
authority discretion. Both provisions address the threshold above which 
a source will be considered to cause or contribute to a NAAQS 
violation. However, the provisions do not preclude a determination that 
a source may be considered to cause and contribute to a NAAQS violation 
even when the impact is below a SIL value set forth in 40 CFR 
51.165(b)(2) which is utilized by the permitting authority. In fact, 
the court in Sierra Club v. EPA (705 F.3d 458, 469), declined to vacate 
the PM2.5 SIL value at section 51.165(b)(2) because the 
court explicitly found that, unlike section 51.166(k)(2), this 
provision does not improperly restrict permitting authorities' 
discretion (See 705 F.3d at 465-66). There is nothing in section 9VAC5-
80-1715B(1) that would preclude VADEQ from imposing additional 
requirements on any sources necessary to show that a source does not 
cause or contribute to a NAAQS violation, including those sources 
impacting Class I areas. Therefore, except for the exceptions noted, 
EPA is finalizing the proposal to grant approval to Virginia's August 
25, 2011 submittal.

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 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 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 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.

V. Final Action

    EPA is approving Virginia's August 25, 2011 submittal as a revision 
to the Virginia SIP, with the exception of paragraph A(2) of 9VAC5-80-
1715, and the portion of paragraph E(1) of 9VAC5-80-1695 pertaining to 
PM2.5 which were withdrawn by Virginia on February 13, 2013. 
EPA is finalizing a limited approval of the amendments to the 
nonattainment NSR regulations set forth at 9VAC5-80-2010 (Definitions) 
and 9VAC5-80-2120 (Offsets). EPA is also approving the August 25, 2011 
SIP submittal and the relevant portions of the above identified 
infrastructure SIP submittals which relate to the PSD requirements set 
forth in CAA sections

[[Page 10382]]

110(a)(2)(C), (D)(i)(II), and (J) for the 1997 PM2.5, 2006 
PM2.5, and 2008 lead NAAQS. EPA is also approving the 
relevant portion of Virginia's infrastructure submittal relating to the 
PSD permit program pursuant to CAA section 110(a)(2)(D)(i)(II) for the 
1997 ozone NAAQS. As previously discussed, EPA is not taking final 
action on its proposal to approve the portions of the Virginia 
infrastructure SIP submittals (which were identified in the NPR and are 
identified above) related to the visibility requirements of section 
110(a)(2)(D)(i)(II) for the 1997 ozone, 1997 PM2.5, 2006 
PM2.5, and 2008 lead NAAQS, because a final rulemaking 
action has previously been taken.
    Additionally, on December 20, 2012 (77 FR 75380), EPA approved 
revisions to Articles 8 and 9 of 9VAC5, chapter 80. Neither that action 
nor the current action removes the pre-existing limited approval status 
of Virginia's PSD and nonattainment programs (See, Section III: General 
Information Pertaining to SIP Submittals from the Commonwealth of 
Virginia, 77 FR 75380-81, and Section IV, herein). However, the 
December 20, 2012 revisions to the table in paragraph 52.2420(c) 
inadvertently omitted reference to the limited approval status. In the 
interest of clarity, EPA is correcting that omission in this action. 
EPA is also adding a citation for the revised 9VAC5-80-1935 to the 
table in paragraph 52.2420(c). This revision was discussed in both the 
proposed and final rulemaking actions, but was inadvertently omitted 
from the table itself.

VI. 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 April 28, 2014. 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 pertaining to Virginia's PSD and nonattainment NSR 
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, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: January 28, 2014.
Shawn M. Garvin,
Regional Administrator, Region III.

    40 CFR Part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

    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:
0
a. The table in paragraph (c) is amended by revising the entries for 
Sections 5-10-30, 5-80-1615, 5-80-1625, 5-80-1635, 5-80-1695, 5-80-
1715, 5-80-1765, 5-80-1915, 5-80-1925, 5-80-1935, 5-80-1945, 5-80-1955, 
5-80-1965, 5-80-2010, 5-80-2020, 5-80-2120, 5-80-2140, 5-80-2195, 5-80-
2200, 5-80-2210, 5-80-2220, 5-80-2230, and 5-80-2240.
0
b. The table in paragraph (e) is amended by revising the entries for 
section 110(a)(2) Infrastructure Requirements for the 1997 8-Hour Ozone 
NAAQS, section 110(a)(2) Infrastructure Requirements for the 1997 
PM2.5 NAAQS, section 110(a)(2) Infrastructure Requirements 
for the 2006 PM2.5 NAAQS, and adding section 110(a)(2) 
Infrastructure Requirements for the 2008 Lead NAAQS immediately 
following the previous entries.
    The amendments read as follows:

[[Page 10383]]

Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

                                 EPA-Approved Virginia Regulations and Statutes
----------------------------------------------------------------------------------------------------------------
                                                             State                           Explanation [former
          State citation              Title/subject     effective date   EPA approval date      SIP citation]
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
9VAC5, Chapter 10................                           General Definitions [Part I]
 
                                                  * * * * * * *
5-10-30..........................  Abbreviations......         8/17/11  2/25/14 [Insert      Revised.
                                                                         page number where
                                                                         the document
                                                                         begins].
 
                                                  * * * * * * *
9VAC5, 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........         8/17/11  2/25/14 [Insert      Revised. Limited
                                                                         page number where    approval remains
                                                                         the document         in effect.
                                                                         begins].
5-80-1625........................  General............         7/23/09  12/20/12, 77 FR      Revised. Limited
                                                                         75380.               approval remains
                                                                                              in effect.
5-80-1635........................  Ambient Air                 8/17/11  2/25/14 [Insert      Revised. Limited
                                    Increments.                          page number where    approval remains
                                                                         the document         in effect.
                                                                         begins].
 
                                                  * * * * * * *
5-80-1695........................  Exemptions.........         8/17/11  2/25/14 [Insert      Revised. The
                                                                         page number where    portion of
                                                                         the document         paragraph E(1)
                                                                         begins].             that relates to
                                                                                              PM2.5 is not in
                                                                                              the SIP. Limited
                                                                                              approval remains
                                                                                              in effect.
 
                                                  * * * * * * *
5-80-1715 (Except paragraph A(2))  Source impact               8/17/11  2/25/14 [Insert      Revised. Paragraph
                                    analysis.                            page number where    A(2) is not in the
                                                                         the document         SIP. Limited
                                                                         begins].             approval remains
                                                                                              in effect.
 
                                                  * * * * * * *
5-80-1765........................  Sources affecting           8/17/11  2/25/14 [Insert      Revised. Limited
                                    Federal class I                      page number where    approval remains
                                    areas--additional                    the document         in effect.
                                    requirements.                        begins].
 
                                                  * * * * * * *
5-80-1915........................  Actions to combine          7/23/09  12/20/12, 77 FR      New. Limited
                                    permit terms and                     75380.               approval.
                                    conditions.
5-80-1925........................  Actions to change           7/23/09  12/20/12, 77 FR      Revised. Limited
                                    permits.                             75380.               approval remains
                                                                                              in effect.
5-80-1935........................  Administrative              7/23/09  12/20/12, 77 FR      Revised. Limited
                                    permit amendments.                   75380.               approval remains
                                                                                              in effect.
5-80-1945........................  Minor permit                7/23/09  12/20/12, 77 FR      Revised. Limited
                                    amendments.                          75380.               approval remains
                                                                                              in effect.
5-80-1955........................  Significant                 7/23/09  12/20/12, 77 FR      Revised. Limited
                                    amendment                            75380.               approval remains
                                    procedures.                                               in effect.
5-80-1965........................  Reopening for cause         7/23/09  12/20/12, 77 FR      Revised. Limited
                                                                         75380.               approval remains
                                                                                              in effect.
 
                                                  * * * * * * *
Article 9........................       Permits--Major Stationary Sources and Major Modifications Located in
                                                  Nonattainment Areas or the Ozone Transport Region
 
                                                  * * * * * * *
5-80-2010........................  Definitions........         8/17/11  2/25/14 [Insert      Revised. Limited
                                                                         page number where    approval of 9/1/06
                                                                         the document         and 8/17/11
                                                                         begins].             amendments.
5-80-2020........................  General............         7/23/09  12/20/12, 77 FR      Revised. Limited
                                                                         75380.               approval remains
                                                                                              in effect.
 
                                                  * * * * * * *
5-80-2120........................  Offsets............         8/17/11  2/25/14 [Insert      Revised. Limited
                                                                         page number where    approval of 9/1/06
                                                                         the document         and 8/17/11
                                                                         begins].             amendments.

[[Page 10384]]

 
 
                                                  * * * * * * *
5-80-2140........................  Exemptions.........         7/23/09  12/20/12, 77 FR      Revised. Limited
                                                                         75380.               approval remains
                                                                                              in effect.
 
                                                  * * * * * * *
5-80-2195........................  Actions to combine          7/23/09  12/20/12, 77 FR      New. Limited
                                    permit terms and                     75380.               approval.
                                    conditions.
5-80-2200........................  Actions to change           7/23/09  12/20/12, 77 FR      Revised. Limited
                                    permits.                             75380.               approval remains
                                                                                              in effect.
5-80-2210........................  Administrative              7/23/09  12/20/12, 77 FR      Revised. Limited
                                    permit amendments.                   75380.               approval remains
                                                                                              in effect.
5-80-2220........................  Minor permit                7/23/09  12/20/12, 77 FR      Revised. Limited
                                    amendments.                          75380.               approval remains
                                                                                              in effect.
5-80-2230........................  Significant                 7/23/09  12/20/12, 77 FR      Revised. Limited
                                    amendment                            75380.               approval remains
                                    procedures.                                               in effect.
5-80-2240........................  Reopening for cause         7/23/09  12/20/12, 77 FR      Revised. Limited
                                                                         75380.               approval remains
                                                                                              in effect.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
    Name of non-regulatory SIP          Applicable           State                                Additional
             revision                geographic area    submittal date   EPA approval date       explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 110(a)(2) Infrastructure   Statewide..........   12/10/07, 12/  10/11/11; 76 FR      This action
 Requirements for the 1997 8-Hour                       13/07, 6/8/10,   62635.               addresses the
 Ozone NAAQS.                                                   6/9/10                        following CAA
                                                                                              elements or
                                                                                              portions thereof:
                                                                                              110(a)(2)(A), (B),
                                                                                              (C), (D)(ii), (E),
                                                                                              (F), (G), (H),
                                                                                              (J), (K), (L), and
                                                                                              (M).
                                   ...................   11/13/07, 12/  2/25/14 [Insert      This action
                                                        13/07, 8/25/11   Federal Register     addresses the PSD
                                                                         page number where    related elements
                                                                         the document         of the following
                                                                         begins].             CAA requirements:
                                                                                              110(a)(2)(D)(i)
                                                                                              (II).
Section 110(a)(2) Infrastructure   Statewide..........   7/10/08, 9/2/  10/11/11; 76 FR      This action
 Requirements for the 1997 PM2.5                        08, 6/8/10, 6/   62635.               addresses the
 NAAQS.                                                   9/10, 4/1/08                        following CAA
                                                                                              elements or
                                                                                              portions thereof:
                                                                                              110(a)(2)(A), (B),
                                                                                              (C), (D)(ii), (E),
                                                                                              (F), (G), (H),
                                                                                              (J), (K), (L), and
                                                                                              (M).
                                   ...................  11/13/07, 7/10/ 2/25/14 [Insert      This action
                                                        08, 9/2/08, 8/   Federal Register     addresses the PSD
                                                                 25/11   page number where    related elements
                                                                         the document         of the following
                                                                         begins].             CAA requirements:
                                                                                              110(a)(2)(C),
                                                                                              (D)(i)(II), and
                                                                                              (J).
Section 110(a)(2) Infrastructure   Statewide..........   8/30/10, 4/1/  10/11/11; 76 FR      This action
 Requirements for the 2006 PM2.5                                    11   62635.               addresses the
 NAAQS.                                                                                       following CAA
                                                                                              elements or
                                                                                              portions thereof:
                                                                                              110(a)(2)(A), (B),
                                                                                              (C), (D)(ii), (E),
                                                                                              (F), (G), (H),
                                                                                              (J), (K), (L), and
                                                                                              (M).
                                   ...................   4/1/11, 8/25/  2/25/14 [Insert      This action
                                                                    11   Federal Register     addresses the PSD
                                                                         page number where    related elements
                                                                         the document         of the following
                                                                         begins].             CAA requirements:
                                                                                              110(a)(2)(C),
                                                                                              (D)(i)(II), and
                                                                                              (J).
Section 110(a)(2) Infrastructure   Statewide..........          3/9/12  9/24/13, 78 FR       This action
 Requirements for the 2008 Lead                                          58462.               addresses the
 NAAQS.                                                                                       following CAA
                                                                                              elements or
                                                                                              portions thereof:
                                                                                              110(a)(2)(A), (B),
                                                                                              (C) (for
                                                                                              enforcement and
                                                                                              regulation of
                                                                                              minor sources),
                                                                                              (D)(i)(I),
                                                                                              (D)(i)(II) (for
                                                                                              the visibility
                                                                                              protection
                                                                                              portion), (D)(ii),
                                                                                              (E)(i), (E)(iii),
                                                                                              (F), (G), (H),
                                                                                              (J), (K), (L), and
                                                                                              (M).
                                   ...................         8/25/11  2/25/14 [Insert      This action
                                                                         Federal Register     addresses the PSD
                                                                         page number where    related elements
                                                                         the document         of the following
                                                                         begins].             CAA requirements:
                                                                                              110(a)(2)(C),
                                                                                              (D)(i)(II), and
                                                                                              (J).
 

[[Page 10385]]

 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2014-03640 Filed 2-24-14; 8:45 am]
BILLING CODE 6560-50-P