[Federal Register Volume 80, Number 108 (Friday, June 5, 2015)]
[Proposed Rules]
[Pages 32078-32081]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-13804]



40 CFR Part 52

[EPA-R03-OAR-2015-0274; FRL-9928-77-Region 3]

Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Prevention of Significant Deterioration; Plantwide 
Applicability Limits for Greenhouse Gases

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.


SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve aMay 12, 2014 State Implementation Plan (SIP) revision 
submitted for the Commonwealth of Virginia by the Virginia Department 
of Environmental Quality (VADEQ). This revision will add Plantwide 
Applicability Limit (PAL) provisions for Greenhouse Gases (GHGs) to 
Virginia's Prevention of Significant Deterioration (PSD) program. This 
action is being taken under the Clean Air Act (CAA).

DATES: Written comments must be received on or before July 6, 2015.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2015-0274 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-2015-0274, 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-
2015-0274. 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

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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 Commonwealth's 
submittal are available at the Virginia Department of Environmental 
Quality, 629 E. Main Street, Richmond, Virginia, 23219.

FOR FURTHER INFORMATION CONTACT: David Talley, (215) 814-2117, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: On May 12, 2014, VADEQ submitted a proposed 
revision to the Virginia SIP.

I. Background

    The proposed SIP revision incorporates amendments to Chapter 85 
under Article 9 of the Virginia Administrative Code (9VAC5). In a June 
3, 2010 final rulemaking action, EPA promulgated regulations known as 
``the Tailoring Rule,'' which phased in permitting requirements for GHG 
emissions from stationary sources under the CAA PSD and title V 
permitting programs. See 75 FR 31514. For Step 1 of the Tailoring Rule, 
which began on January 2, 2011, PSD or title V requirements applied to 
sources of GHG emissions only if the sources were subject to PSD or 
title V ``anyway'' due to their emissions of non-GHG pollutants. These 
sources are referred to as ``anyway sources.'' Step 2 of the Tailoring 
Rule, which began on July 1, 2011, applied the PSD and title V 
permitting requirements under the CAA to sources that were classified 
as major, and, thus, required to obtain a permit, based solely on their 
potential GHG emissions and to modifications of otherwise major sources 
that required a PSD permit because they increased only GHGs above 
applicable levels in the EPA regulations. Subsequently, on May 13, 
2011, EPA took final action to approve a revision to Virginia's PSD 
SIP, incorporating preconstruction permitting requirements for major 
stationary sources and major modifications of GHGs, consistent with the 
Federal PSD requirements at the time. See 76 FR 27898.
    In a June 12, 2012 final rulemaking action entitled ``Prevention of 
Significant Deterioration and Title V Greenhouse Gas Tailoring Rule 
Step 3 and GHG Plantwide Applicability Limits,'' \1\ (hereafter, 
Tailoring Rule Step 3), EPA promulgated a number of streamlining 
measures intended to improve the administration of GHG PSD permitting 
programs. Included in that rulemaking were provisions to allow sources 
to obtain GHG PALs on a carbon dioxide equivalent (CO2e) \2\ 
basis, rather than strictly on a mass basis. A PAL is an emissions 
limitation for a single pollutant expressed in tons per year (tpy) that 
is enforceable as a practical matter and is established source-wide in 
accordance with specific criteria. See 40 CFR 52.21(aa)(2)(v). PALs 
offer an alternative method for determining major New Source Review 
(NSR) applicability: If a source can maintain its overall emissions of 
the PAL pollutant below the PAL level, the source can make a change 
without triggering PSD review. Virginia's May 12, 2014 submittal 
incorporates PAL provisions into Virginia's PSD program, consistent 
with EPA's Tailoring Rule Step 3.

    \1\ See 77 FR 41051.
    \2\ CO2e is defined as the mass of the specific GHG 
(in tons), multiplied by its Global Warming Potential, as codified 
in 40 CFR part 98.

    On June 23, 2014, the United States Supreme Court, in Utility Air 
Regulatory Group v. Environmental Protection Agency,\3\ issued a 
decision addressing the Tailoring Rule and the application of PSD 
permitting requirements to GHG emissions. The Supreme Court said that 
the EPA may not treat GHGs as an air pollutant for purposes of 
determining whether a source is a major source required to obtain a PSD 
permit. The Court also said that the EPA could continue to require that 
PSD permits, otherwise required based on emissions of pollutants other 
than GHGs, contain limitations on GHG emissions based on the 
application of Best Available Control Technology (BACT). The Supreme 
Court decision effectively upheld PSD permitting requirements for GHG 
emissions under Step 1 of the Tailoring Rule for ``anyway sources'' and 
invalidated PSD permitting requirements for Step 2 sources.

    \3\ See 134 S.Ct. 2427.

    In accordance with the Supreme Court decision, on April 10, 2015, 
the U.S. Court of Appeals for the District of Columbia Circuit (D.C. 
Circuit) issued an amended judgment vacating the regulations that 
implemented Step 2 of the Tailoring Rule, but not the regulations that 
implement Step 1 of the Tailoring Rule.\4\ The amended judgment 
preserves, without the need for additional rulemaking by the EPA, the 
application of the BACT requirement to GHG emissions from sources that 
are required to obtain a PSD permit based on emissions of pollutants 
other than GHGs (i.e., the ``anyway'' sources). The D.C. Circuit's 
judgment vacated the regulations at issue in the litigation, including 
40 CFR 51.166(b)(48)(v), ``to the extent they require a stationary 
source to obtain a PSD permit if greenhouse gases are the only 
pollutant (i) that the source emits or has the potential to emit above 
the applicable major source thresholds, or (ii) for which there is a 
significant emissions increase from a modification.'' \5\

    \4\ Coalition for Responsible Regulation v. EPA, D.C. Cir., No. 
09-1322, 06/26/20, judgment entered for No. 09-1322 on 04/10/2015.
    \5\ Id.

    EPA may need to take additional steps to revise federal PSD rules 
in light of the Supreme Court decision and recent D.C. Circuit 
judgment. In addition, EPA anticipates that many states will revise 
their existing SIP-approved PSD programs. EPA is not expecting states 
to have revised their existing PSD program regulations at this 
juncture. However, EPA is evaluating PSD program submissions to assure 
that the state's program correctly addresses GHGs consistent with both 
    Virginia's currently approved PSD SIP continues to require that PSD 
permits (otherwise required based on emissions of pollutants other than 
GHGs) contain limitations on GHG emissions based on the application of 
BACT when sources emit or increase GHGs in the amount of

[[Page 32080]]

75,000 tpy, measured as CO2e. Although Virginia's SIP may 
also currently contain provisions that are no longer necessary in light 
of the D.C. Circuit's judgment or the Supreme Court decision, this does 
not prevent the EPA from approving the submission addressed in this 
rule. Virginia's May 12, 2014 SIP submission does not add any GHG 
permitting requirements that are inconsistent with either decision.
    Likewise, the GHG PAL provisions included in Virginia's May 12, 
2014 submittal include some provisions that may no longer be 
appropriate in light of both the D.C. Circuit judgment and the Supreme 
Court decision. Since the Supreme Court has determined that sources and 
modifications may not be defined as ``major'' solely on the basis of 
the level of GHGs emitted or increased, PALs for GHGs may no longer 
have value in some situations where a source might have triggered PSD 
based on GHG emissions alone. However, PALs for GHGs may still have a 
role to play in determining whether a modification that triggers PSD 
for a pollutant other than GHGs should also be subject to BACT for 
GHGs. These provisions, like the other GHG provisions discussed 
previously, may be revised at some future time. However, these 
provisions do not add new requirements for sources or modifications 
that only emit or increase GHGs above the major source threshold or the 
75,000 tpy GHG level in Sec.  52.21(b)(49)(iv). Rather, the PAL 
provisions provide increased flexibility to sources that wish to 
address their GHG emissions in a PAL. Since this flexibility may still 
be valuable to sources in at least one context described above, EPA 
believes that it is appropriate to approve these provisions into the 
Virginia SIP at this juncture.

II. Summary of SIP Revision

    The proposed revision includes amendments to 9VAC5-85: ``Permits 
for Stationary Sources of Pollutants Subject to Regulation.'' 
Specifically, 9VAC5-85-40: ``Prevention of Significant Deterioration 
Area Permit Actions,'' and 9VAC5-85-50: ``Definitions'' are being 
amended. Additionally, 9VAC5-85-55: ``Actual plantwide applicability 
limits,'' is being added to the SIP. The proposed amendments are 
consistent with the GHG PAL provisions of 40 CFR 52.21 as promulgated 
by EPA on July 12, 2012. See 77 FR 41072-41075.

III. Proposed Action

    EPA's review of this material indicates the proposed SIP revision 
is consistent with the CAA and the Federal PSD regulations at 40 CFR 
52.21. EPA is proposing to approve Virginia's May 12, 2014 submittal as 
a revision to the Virginia SIP, in accordance with CAA section 110. EPA 
is soliciting public comments on the issues discussed in this document. 
These comments will be considered before taking final action.

IV. Incorporation by Reference

    In this proposed rulemaking action, EPA is proposing to include in 
a final EPA rule, regulatory text that includes incorporation by 
reference. In accordance with requirements of 1 CFR 51.5, the EPA is 
proposing to incorporate by reference Virginia's GHG PAL regulations, 
as discussed in section II of this preamble. The 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 

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 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 
    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

    Under the CAA, the Administrator is required to approve a SIP 

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

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

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

    Dated: May 26, 2015.
William C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2015-13804 Filed 6-4-15; 8:45 am]