[Federal Register Volume 80, Number 70 (Monday, April 13, 2015)]
[Rules and Regulations]
[Pages 19541-19544]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-08417]



40 CFR Part 52

[EPA-R03-OAR-2013-0593; FRL-9925-96-Region-3]

Approval and Promulgation of Air Quality Implementation Plans; 
Virginia--Prevention of Significant Deterioration; Amendment to the 
Definition of ``Regulated NSR Pollutant'' Concerning Condensable 
Particulate Matter

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.


SUMMARY: The Environmental Protection Agency (EPA) is taking direct 
final action to approve a July 25, 2013 State Implementation Plan (SIP) 
revision submitted by the Virginia Department of Environmental Quality 
(VADEQ) for the Commonwealth of Virginia. The revision includes a 
correction to the definition of ``regulated NSR [New Source Review] 
pollutant'' as it relates to condensable particulate matter under 
Virginia's Prevention of Significant Deterioration (PSD) program. The 
revision also includes the correction of a minor typographical error. 
EPA is approving these revisions to the Virginia SIP in accordance with 
the requirements of the Clean Air Act (CAA).

DATES: This rule is effective on June 12, 2015 without further notice, 
unless EPA receives adverse written comment by May 13, 2015. If EPA 
receives such comments, it will publish a timely withdrawal of the 
direct final rule in the Federal Register and inform the public that 
the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2013-0593 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. Email: [email protected].
    C. Mail: EPA-R03-OAR-2013-0593, David Campbell, Associate Director, 
Office of Permits and Air Toxics, Mailcode 3AP10, U.S. Environmental 
Protection Agency, Region III, 1650 Arch Street, Philadelphia, 
Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2013-0593. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov, your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy during normal business hours at the Air Protection 
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch 
Street, Philadelphia, Pennsylvania 19103. Copies of the 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].


I. Background

    On July 25, 2013, VADEQ submitted a formal revision to the Virginia 
SIP. The SIP revision consists of an amendment to the definition of 
``regulated NSR pollutant'' for VADEQ's PSD program under Article 8 of 
Chapter 80 of the Virginia Administrative Code (VAC), as well as a 
correction of a minor typographical error. The definition revision 
pertains to the regulation of particulate matter, specifically, gases 
that condense to form particles (condensables).
    ``Particulate matter'' (PM) is a term used to define an air 
pollutant that consists of a mixture of solid particles and liquid 
droplets found in the ambient air. PM occurs in many sizes and shapes 
and can be made up of hundreds of different chemicals. As explained 
further in the discussion that follows, EPA has regulated several size 
ranges of particles under the CAA, referred to as indicators of 
particles, namely PM, coarse PM (PM10), and fine PM 
    Initially, EPA established a National Ambient Air Quality Standard 
(NAAQS) for PM on April 30, 1971, under sections 108 and 109 of the 
CAA. See 36 FR 8186. Compliance with the original PM NAAQS was based on 
the measurement of particles in the ambient air using an indicator of 
particles measuring up to a nominal size of 25 to 45 micrometers 
([micro]m). EPA used the indicator name ``total suspended particulate'' 
or ``TSP'' to define the particle size range that was being measured. 
Total suspended particulate remained the indicator for the PM NAAQS 
until 1987 when EPA revised the NAAQS in part by replacing the TSP 
indicator for both the primary and secondary standards with a new 
indicator that includes only those particles with an aerodynamic 
diameter less than or equal to a nominal 10 [micro]m (PM10).
    On July 18, 1997, the EPA made significant revisions to the PM 
NAAQS in several respects. While the EPA determined that the PM NAAQS 
should continue to focus on PM10, EPA also determined that 
the fine and coarse fractions of PM10 should be considered 
separately. Accordingly, on July 18, 1997, the EPA added a new 
indicator for fine particles with a nominal mean aerodynamic diameter 
less than or equal to 2.5 [micro]m (PM2.5), and continued to 
use PM10 as the indicator for purposes of regulating the 
coarse fraction of PM10. See 62 FR 38652.
    On May 16, 2008, EPA finalized the ``Implementation of the New 
Source Review (NSR) Program for Particulate

[[Page 19542]]

Matter Less than 2.5 Micrometers (PM2.5)'' (2008 NSR 
PM2.5 Rule) to implement the 1997 PM2.5 NAAQS, 
including changes to the NSR program. See 73 FR 28321. The 2008 NSR 
PM2.5 Rule revised the NSR program requirements to establish 
the framework for implementing preconstruction permit review for the 
PM2.5 NAAQS in both attainment and nonattainment areas. 
Among other requirements, the 2008 NSR PM2.5 Rule required 
states and sources to account for condensables in PM2.5 
emission limits.
    The 2008 NSR PM2.5 Rule contained an error in the 
regulations for PSD \1\ and in the EPA's Emission Offset Interpretative 
Ruling.\2\ This error was introduced in the definition of ``regulated 
NSR pollutant'' that was revised as part of the final rulemaking. The 
wording of that revised definition had the effect of requiring that PM 
emissions, PM10 emissions, and PM2.5 emissions--
representing three separate size ranges or indicators of particles--
must all include condensables. EPA did not intend in the 2008 NSR 
PM2.5 Rule that the term ``particulate matter emissions'' be 
listed with ``PM2.5 emissions'' and ``PM10 
emissions'' in requirements to include the condensable fraction of 
primary PM. Historically, for ``particulate matter emissions'' often 
only the filterable fraction had been considered for NSR purposes, 
consistent with the applicable New Source Performance Standards (NSPS) 
for PM and the corresponding compliance test method. On October 25, 
2012, EPA promulgated a final rule \3\ which revised the definition of 
``regulated NSR pollutant'' to correct the error and remove the 
unintended new requirement on state and local agencies and the 
regulated community that ``particulate matter emissions'' must include 
condensables in all cases. EPA's October 25, 2012 action ensured that 
the originally-intended approach for regulating the three indicators 
for emissions of particulate matter under the PSD program was codified. 
Thus, ``PM10 emissions'' and ``PM2.5 emissions'' 
are regulated as criteria pollutants (that is, under the portion of the 
definition of ``regulated NSR pollutant'' that refers to ``[a]ny 
pollutant for which a national ambient air quality standard has been 
promulgated. . .'' and are required to include the condensable PM 
fraction emitted by a source. See 40 CFR 51.166(b)(49)(i) and 
52.21(b)(50)(i). In contrast, ``particulate matter emissions'' is 
regulated as a non-criteria pollutant under the portion of the 
definition that refers to ``[a]ny pollutant that is subject to any 
standard promulgated under section 111 of the Act,'' where the 
condensable PM fraction generally is not required to be included in 
measurements to determine compliance with standards of performance for 
PM. See 40 CFR 51.166(b)(49)(ii) and 52.21(b)(50)(ii).

    \1\ See 40 CFR 51.166 and 52.21.
    \2\ See 40 CFR part 51, appendix S.
    \3\ See 77 FR 65107 (October 25, 2012) (``Implementation of the 
New Source Review (NSR) Program for Particulate Matter Less Than 2.5 
Micrometers (PM2.5): Amendment to the Definition of 
`Regulated NSR Pollutant' Concerning Condensable Particulate 

    Virginia submitted and EPA previously approved a SIP revision to 
address the provisions of the 2008 PM2.5 NSR Rule which 
included the errant language relating to ``particulate matter 
emissions.'' See 79 FR 10377 (February 25, 2014). This direct final 
rulemaking action makes Virginia's PSD SIP consistent with EPA's 
original intent, as well as consistent with the corrected Federal 
requirements that only PM10 and PM2.5 consider 
condensables, unless a specific NSPS or SIP provision requires 
otherwise. Additional discussion on EPA's requirements to consider 
condensables for PM10 and PM2.5 for PSD is 
available in the preamble to EPA's October 25, 2012 rulemaking action, 
which is included in the docket for this action.
    EPA notes that on January 4, 2013, the U.S. Court of Appeals for 
the District of Columbia Circuit (DC Circuit), in Natural Resources 
Defense Council v. EPA \4\ (hereafter, NRDC v. EPA), issued a decision 
that remanded the EPA's rules implementing the 1997 PM2.5 
NAAQS, including the 2008 NSR PM2.5 Rule. The DC Circuit's 
remand of the 2008 NSR PM2.5 Rule is relevant to this direct 
final rulemaking. As previously discussed, this rule promulgated NSR 
requirements for implementation of PM2.5 in both 
nonattainment areas (nonattainment NSR) and attainment/unclassifiable 
areas (PSD). The DC Circuit 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 
EPA to ``repromulgate these rules pursuant to Subpart 4 consistent with 
this opinion.'' Id. at 437. However, 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 in attainment and unclassifiable 
areas are not affected by the DC 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 DC Circuit's opinion.

    \4\ See 706 F.3d 428 (D.C. Cir. 2013).

II. Summary of SIP Revision

    This action amends the previously approved definition of 
``regulated NSR pollutant'' under 9VAC5-80-1615 to be consistent with 
the Federal definition and requirements for condensable PM. 
Additionally, 9VAC5-80-1615(B) is revised to correct a minor 
typographical error (a regulatory citation to an incorrect section of 
the VAC). The revisions being approved were effective in the 
Commonwealth of Virginia on May 22, 2013.

III. Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, the EPA is finalizing the incorporation by reference of revisions 
to the definitions under 9VAC5-80-1615 as described in Section II of 
this notice. EPA has made, and will continue to make, these documents 
generally available electronically through www.regulations.gov and/or 
in hard copy at the appropriate EPA office (see the ADDRESSES section 
of this preamble for more information).

IV. Final Action

    EPA is approving VADEQ's July 25, 2013 submittal as a revision to 
the Virginia SIP. EPA is publishing this rule without prior proposal 
because EPA views this as a noncontroversial amendment and anticipates 
no adverse comment. However, in the ``Proposed Rules'' section of this 
Federal Register, EPA is publishing a separate document that will serve 
as the proposal to approve the SIP revision if adverse comments are 
filed. This rule will be effective on June 12, 2015 without further 
notice unless EPA receives adverse comment by May 13, 2015. If EPA 
receives adverse comment, EPA will publish a timely withdrawal in the 
Federal Register informing the public that the rule will not take 
effect. EPA will address all public comments in a subsequent final rule 
based on the proposed rule. EPA will not institute a second comment 
period on this action. Any parties interested in commenting must do so 
at this time.

[[Page 19543]]

V. 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 section 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.

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. 

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

[[Page 19544]]

circuit by June 12, 2015. 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. Parties with 
objections to this direct final rule are encouraged to file a comment 
in response to the parallel notice of proposed rulemaking for this 
action published in the proposed rules section of this Federal 
Register, rather than file an immediate petition for judicial review of 
this direct final rule, so that EPA can withdraw this direct final rule 
and address the comment in the proposed rulemaking action.
    This action pertaining to Virginia's PSD program 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: March 25, 2015.
William C. Early,
Acting Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:


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

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

Subpart VV--Virginia

2. In Sec.  52.2420, the table in paragraph (c) is amended by revising 
the entry for Section 5-80-1615 to read as follows:

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]
                                                  * * * * * * *
                         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........         5/22/13  4/13/15 [Insert      Revised. Limited
                                                                         Federal Register     approval remains
                                                                         Citation].           in effect.
                                                  * * * * * * *

* * * * *
[FR Doc. 2015-08417 Filed 4-10-15; 8:45 am]