[Federal Register Volume 81, Number 39 (Monday, February 29, 2016)]
[Rules and Regulations]
[Pages 10088-10091]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-04245]



40 CFR Part 52

[EPA-R03-OAR-2016-0006; FRL-9942-90-Region 3]

Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Prevention of Significant Deterioration; Fine Particulate 

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.


SUMMARY: The Environmental Protection Agency (EPA) is taking direct 
final action to approve revisions to the Commonwealth of Virginia State 
Implementation Plan (SIP) submitted by the Virginia Department of 
Environmental Quality (VADEQ) on behalf of the Commonwealth on July 22, 
2014. VADEQ's submittal revises Virginia's Prevention of Significant 
Deterioration (PSD) air quality preconstruction permitting program to 
be consistent with the federal PSD regulations regarding the use of the 
significant monitoring concentration (SMC) and significant impact 
levels (SILs) for fine particulate matter (PM2.5) emissions. 
EPA is approving these revisions in accordance with the requirements of 
the Clean Air Act (CAA).

DATES: This rule is effective on April 29, 2016 without further notice, 
unless EPA receives adverse written comment by March 30, 2016. 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 No. EPA-R03-
OAR-2016-0006 at http://www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, follow 
the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, the EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the ``For Further Information Contact'' section. For the 
full EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Himanshu Vyas, (215) 814-2112, or by 
email at [email protected].


I. Background

    The CAA at section 110(a)(2)(C) requires states to develop and 
submit to the EPA for approval into the SIP preconstruction review and 
permitting programs applicable to certain new and modified stationary 
sources of air pollutants for attainment and nonattainment areas that 
cover both major and minor new sources and modifications, collectively 
referred to as the New Source Review (NSR) SIP. The CAA NSR SIP program 
is composed of three separate programs: PSD, Nonattainment New Source 
Review (NNSR), and Minor NSR. PSD is established in part C of title I 
of the CAA and applies in areas that meet the National Ambient Air 
Quality Standards (NAAQS)--``attainment areas,'' as well as areas where 
there is insufficient information to determine if the area meets the 
NAAQS--``unclassifiable areas.'' The NNSR SIP program is established in 
part D of title I of the CAA and applies in areas that are not in 
attainment of the NAAQS--``nonattainment areas.'' The Minor NSR SIP 
program addresses construction or modification activities that do not 
emit, or have the potential to emit, beyond certain major source 
thresholds, and thus do not qualify as ``major'' and applies regardless 
of the designation of the area in which a source is located. The EPA 
regulations governing the criteria that states must satisfy for EPA 
approval of the NSR programs as part of the SIP are contained in 40 CFR 
    On October 20, 2010, EPA promulgated revisions to the existing

[[Page 10089]]

requirements of the federal PSD permitting program as it pertains to 
emissions of PM2.5.\1\ As relevant here for this rulemaking, 
those revisions included two screening tools which outlined the extent 
to which certain sources were required as part of a permit application 
to demonstrate the impact of the proposed project on ambient air 
quality. A SMC was established to determine whether a PSD permit 
application may be exempted from the 1-year air monitoring requirement 
for PM2.5 based on the grounds that the increase of the 
pollutant is de minimis and would have a limited impact on ambient air 
quality. Additionally, SILs were established, below which a source was 
presumed to have met its statutory obligation to demonstrate that the 
proposed project would not cause or contribute to a violation of the 
NAAQS. In response to a request from EPA and a petition from a third 
party, the United States Court of Appeals for the District of Columbia 
Circuit (the Court) subsequently vacated and remanded to the EPA the 
portions of the 2010 PSD regulations establishing the PM2.5 
SMC and SILs. Sierra Club v. EPA, 705 F.3d 458, 463-64 (D.C. Cir. 
2013). As a result of this decision, EPA subsequently revised its 
regulations to amend the SMC for PM2.5 and to remove the 
SILs for PM2.5 altogether. See 78 FR 73698 (December 9, 

    \1\ See ``Prevention of Significant Deterioration (PSD) for 
Particulate Matter less than 2.5 Micrometers (PM2.5)--
Increments, Significant Impact Levels (SILs) and Significant 
Monitoring Concentration (SMC).'' 75 FR 64864 (October 20, 2010).
    \2\ Rather than remove the PM2.5 SMC in its entirety, 
EPA revised the value to zero micrograms per cubic meter ([micro]g/
m\3\) in order to be clear that there is no air quality impact level 
below which a permitting authority has the discretion to exempt a 
source from PM2.5 monitoring requirements. See 78 FR at 

    Prior to the Court's decision, on August 25, 2011, VADEQ submitted 
a formal revision to its SIP to incorporate changes to its 
PM2.5 regulations in accordance with the federal PSD program 
in effect at that time. In light of the Court's decision, by letter 
dated February 13, 2013, Virginia officially withdrew from the August 
25, 2011 submittal those portions of the Virginia Administrative Code 
(VAC) which pertained to the PM2.5 SILs and SMC. 
Specifically, Virginia withdrew 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. On February 25, 
2014, EPA approved the remaining portions of VADEQ's submittal without 
addressing the PM2.5 SMC and SILs. See 79 FR 10377. Virginia 
subsequently revised the VAC to comport with EPA's December 9, 2013 
rulemaking for SILs and SMC and submitted those amended regulations to 
EPA as a formal SIP revision on July 22, 2014.

II. Summary of SIP Revision

    Virginia's July 22, 2014 SIP submittal consists of revisions to 
Virginia's PSD permitting regulations at 9VAC5-80, sections 1695 and 
1715 to reflect federal requirements relating to PM2.5 SMC 
and SILs. Specifically, 9VAC5-80-1695E(1) establishes a SMC of 0 
[micro]g/m\3\ of PM2.5, and expressly states that no 
exemption from monitoring is available with regard to PM2.5. 
As previously discussed, VADEQ's PM2.5 SILs provision, 
formerly codified at 9VAC5-80-1715A(2) was never approved by EPA into 
Virginia's SIP and was subsequently removed by Virginia from the VAC. 
Therefore, this approval action does not include a substantive revision 
to 9VAC5-80-1715A. Rather, EPA's action involves approval of Virginia's 
administrative recodification, necessitated by the Commonwealth's 
revision of state regulations (i.e., the removal of the SILs from 
9VAC5-80-1715). The Virginia regulations, 9VAC5-80, sections 1695 and 
1715, are consistent with federal PSD requirements for PM2.5 
in the CAA and its implementing regulations, including specifically 40 
CFR 51.166, and were effective in Virginia on June 4, 2014.

III. Final Action

    EPA is approving VADEQ's July 22, 2014 SIP submittal, including 
revised provisions of the VAC, 9VAC5-80, sections 1695 and 1715, as a 
revision to the Virginia SIP because the revision meets CAA 
requirements in the CAA and its implementing regulations. 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 April 29, 2016 without further notice unless EPA 
receives adverse comment by March 30, 2016. 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.

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.

[[Page 10090]]

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 
    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.

V. Incorporation by Reference

    In this rulemaking action, the 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 VADEQ rules regarding PM2.5 SILs and SMC 
discussed in Section III of this preamble. The EPA has made, and will 
continue to make, these documents generally available electronically 
through www.regulations.gov and/or may be viewed at the appropriate EPA 
office (see the ADDRESSES section of this preamble for more 

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, 

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 circuit by April 29, 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. 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 requirements for 
PM2.5 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: February 12, 2016.
Shawn M. Garvin,
Regional Administrator, Region III.
    40 CFR part 52 is amended as follows:


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

[[Page 10091]]

    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 entries under Chapter 80 for Sections 5-80-1695 and 5-80-1715 to 
read as follows:

Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

                                 EPA-Approved Virginia Regulations and Statutes
         State citation             Title/Subject       effective     EPA Approval date    Explanation  [former
                                                          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
                                                  * * * * * * *
5-80-1695......................  Exemptions........          6/4/14  2/29/16 [Insert     Revised paragraph E(1)
                                                                      Federal Register    to add value for
                                                                      Citation].          PM2.5. Limited
                                                                                          approval remains in
                                                  * * * * * * *
5-80-1715......................  Source impact               6/4/14  2/29/16 [Insert     Revised paragraph A.
                                  analysis.                           Federal Register    Limited approval
                                                                      Citation].          remains in effect.
                                                  * * * * * * *

* * * * *
[FR Doc. 2016-04245 Filed 2-26-16; 8:45 am]