[Federal Register Volume 80, Number 225 (Monday, November 23, 2015)]
[Rules and Regulations]
[Pages 72903-72906]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-29680]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2015-0274; FRL-9937-25-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 (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a May 
12, 2014 State Implementation Plan (SIP) revision submitted for the 
Commonwealth of Virginia by the Virginia Department of Environmental 
Quality (VADEQ). This revision adds 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: This final rule is effective on December 23, 2015.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2015-0274. 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 electronically through www.regulations.gov or may be viewed 
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 June 5, 2015 (80 FR 32078), EPA published a notice of proposed 
rulemaking (NPR) for the Commonwealth of Virginia. In the NPR, EPA 
proposed approval of Virginia's May 12, 2014 SIP submittal. The 
revision incorporates PAL provisions for GHGs into Virginia's PSD 
program.
    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.
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    \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.
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    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.
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    \3\ See 134 S.Ct. 2427.
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    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\
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    \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.
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    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

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regulations at this juncture. However, EPA is evaluating PSD program 
submissions to assure that the state's program correctly addresses GHGs 
consistent with both decisions.
    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 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 
EPA from approving the submission addressed in this rule. This 
rulemaking action does not add any GHG permitting requirements that are 
inconsistent with either decision.
    Likewise, the GHG PAL provisions being approved in this action 
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 40 
CFR 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 is approving these provisions as 
a revision to the Virginia SIP at this juncture.

II. Summary of SIP Revision

    The 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 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. These provisions were effective in Virginia on 
March 13, 2014. Other specific requirements of the May 12, 2014 SIP 
submittal and the rationale for EPA's approval are explained in the NPR 
and will not be restated here. No comments were received on the NPR.

III. Final Action

    EPA is approving VADEQ's May 12, 2014 SIP submittal as a revision 
to the Virginia SIP.

IV. Incorporation by Reference

    In this rulemaking action, 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 the 
VADEQ rules regarding GHG PALs discussed in section II of this 
preamble. EPA has made, and will continue to make, these documents 
generally available electronically through www.regulations.gov, or they 
may be viewed at the appropriate EPA office (see the ADDRESSES section 
of this preamble for more information).

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 
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

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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).
    The SIP is not approved to apply on any Indian reservation land as 
defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian 
tribe has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the rule does not have tribal implications and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000).

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 January 22, 2016. 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 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, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: October 28, 2015.
Shawn M. Garvin,
Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart VV--Virginia

0
2. In Sec.  52.2420, the table in paragraph (c) is amended by revising 
the entries under Chapter 85 for Sections 5-85-40 and 5-85-50 and 
adding an entry for Section 5-85-55 to read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

                                 EPA-Approved Virginia Regulations and Statutes
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                                                                                                  Explanation
         State citation               Title/subject            State       EPA approval date      [former SIP
                                                          effective date                           citation]
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             9 VAC 5, Chapter 85 Permits for Stationary Sources of Pollutants Subject to Regulation
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                         Part III Prevention of Significant Deterioration Permit Actions
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5-85-40........................  Prevention of                  03/13/14  11/23/15 [Insert
                                  Significant                              Federal Register
                                  Deterioration Area                       citation].
                                  Permit Actions.

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5-85-50........................  Definitions............        03/13/14  11/23/15 [Insert
                                                                           Federal Register
                                                                           citation].
5-85-55........................  Actual plantwide               03/13/14  11/23/15 [Insert    Added.
                                  applicability limits                     Federal Register
                                  (PALs).                                  citation].
 
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[FR Doc. 2015-29680 Filed 11-20-15; 8:45 am]
 BILLING CODE 6560-50-P