ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Part
52
[
EPA­
R03­
OAR­
2005­
VA­
0015;
FRL­
]

Approval
and
Promulgation
of
Air
Quality
Implementation
Plans;
Virginia;
NSR
in
the
Ozone
Transport
Region
AGENCY:
Environmental
Protection
Agency
(
EPA).

ACTION:
Proposed
rule.

SUMMARY:
This
action
is
being
taken
under
the
Clean
Air
Act
(
CAA
or
the
Act).
EPA
is
proposing
to
approve
a
State
Implementation
Plan
(
SIP)
revision
submitted
by
the
Commonwealth
of
Virginia.
This
revision
pertains
to
changes
in
the
State's
regulations
that
require
implementation
of
nonattainment
New
Source
Review
(
NSR)
in
the
Ozone
Transport
Region
(
OTR)
locations
in
Virginia.

DATES:
Written
comments
must
be
received
on
or
before
[
insert
date
30
days
from
date
of
publication].

ADDRESSES:
Submit
your
comments,
identified
by
Docket
ID
Number
EPA­
R03­
OAR­
2005­

VA­
0015
by
one
of
the
following
methods:

A.
www.
regulations.
gov.
Follow
the
on­
line
instructions
for
submitting
comments.

B.
E­
mail:
campbell.
dave@
epa.
gov
C.
Mail:
EPA­
R03­
OAR­
2005­
VA­
0015,
David
Campbell,
Chief,
Permits
and
Technical
Assessment
Branch,
Mailcode
3AP11,
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
2005­
VA­
0015.
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
e­
mail.
The
www.
regulations.
gov
website
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
e­
mail
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.

2
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:
Sharon
McCauley,
(
215)
814­
3376,
or
by
email
at
mccauley.
sharon@
epa.
gov.

SUPPLEMENTARY
INFORMATION:
On
March
28,
2005,
the
Virginia
Department
of
Environmental
Quality
submitted
a
SIP
revision
approval
request
entitled,
"
NSR
in
the
Ozone
Transport
Region
(
OTR)".
The
applicable
regulations
requiring
implementation
of
nonattainment
NSR
in
the
Virginia
portion
of
the
OTR
were
adopted
by
the
Virginia
State
Air
Pollution
Control
Board
on
September
29,
2004.

3
I.
Background
The
Clean
Air
Act
requires
that
13
states
including
the
District
of
Columbia
submit
revisions
to
their
State
Implementation
Plans
that
will
require
major
new
and
major
modified
sources
of
volatile
organic
compounds
(
VOC)
or
nitrogen
oxides
(
NOx)
to
meet
certain
new
source
review
(
NSR)
requirements
if
they
are
located
(
or
are
proposing
to
locate)
in
the
Ozone
Transport
Region.

Section
184
of
the
Act
establishes
the
OTR,
which
consists
of
the
states
of
Connecticut,

Delaware,
Maine,
Maryland,
Massachusetts,
New
Hampshire,
New
Jersey,
New
York,

Pennsylvania,
Rhode
Island,
Vermont,
and
the
Consolidated
Metropolitan
Statistical
Area
that
includes
the
District
of
Columbia
and
portions
of
Virginia.
The
areas
designated
as
in
the
Virginia
portion
of
the
OTR
are
as
follows:
Arlington
County,
Fairfax
County,
Loudoun
County,
Prince
William
County,
Stafford
County,
Alexandria
City,
Fairfax
City,
Falls
Church
City,
Manassas
City,
and
Manassas
Park
City.

II.
Summary
of
SIP
Revision
The
Commonwealth
of
Virginia
amended
its
regulations
to
clarify
that
areas
located
in
the
Virginia
portion
of
the
OTR
must
meet
the
requirements
of
Virginia
Code
Article
9
VAC
5
Chapter
80
(
Permits
for
Major
Stationary
Sources
and
Major
Modifications
Locating
in
Nonattainment
Areas)

as
if
they
were
classified
as
moderate
nonattainment
for
ozone,
except
that
the
threshold
for
major
stationary
sources
of
VOCs
would
be
50
tons
instead
of
100
tons.
The
4
changes
that
are
reflected
in
this
requested
SIP
revision
are
those
that
identify
and
define
the
OTR
locations
in
Virginia
while
providing
direction
to
what
State
regulations
sources
will
need
to
follow
when
they
are
either
planning
to
locate
in
or
are
already
located
in
the
Virginia
portion
of
the
OTR.
Changes
were
made
to
the
State
provisions
at
9
VAC
5­
80­
2000,
Applicability
and
9
VAC
5­
80­
2010,
Definitions.

Sources
in
the
Virginia
portion
of
the
OTR
are
also
required
to
meet
offset
requirements
in
9
VAC
5­
80­
2120
B
2
for
areas
classified
as
moderate
nonattainment
for
ozone.
These
provisions
require
all
increases
of
VOC
and/
or
NOx
emissions
attributable
to
the
new
or
modified
source
to
be
offset
with
emission
reductions
elsewhere
in
theVirginia
portion
of
the
OTR
at
a
ratio
of
1.15
to
1.00.

The
SIP
revision
will
amend
the
SIP
to
add
new
regulatory
language
indicating
that
sources
in
the
Virginia
portion
of
the
OTR
are
subject
to
the
requirements
of
9
VAC
5­
80­
2000,
et
seq.

regardless
of
the
nonattainment
status
of
the
area
where
the
source
is
located.
The
SIP
revision
also
provides
that
sources
located
or
planning
to
locate
in
areas
within
the
OTR
that
are
classified
as
"
serious"
or
"
severe"
nonattainment
areas
are
required
to
meet
the
respective
emission
thresholds
listed
within
the
State's
definition
of
a
"
major
stationary
source"
at
9
VAC
5­
80­

2010
C
Section
a
(
1)
and
(
2)
and
the
more
restrictive
offset
requirements
located
in
9
VAC
5­
80­
2120
B
3
and
B
4,
respectively.

5
III.
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
(
1)
that
are
generated
or
developed
before
the
commencement
of
a
voluntary
environmental
assessment;
(
2)
that
are
prepared
independently
of
the
assessment
process;
(
3)
that
demonstrate
a
clear,
imminent
and
substantial
danger
to
the
public
health
or
environment;
or
(
4)

that
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
6
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
§
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."

7
Therefore,
EPA
has
determined
that
Virginia's
Privilege
and
Immunity
statutes
will
not
preclude
the
Commonwealth
from
enforcing
its
NSR
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
Clean
Air
Act,
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
Clean
Air
Act
is
likewise
unaffected
by
this,
or
any,
state
audit
privilege
or
immunity
law.

IV.
Proposed
Action
EPA's
review
of
this
material
indicates
this
action
will
have
a
beneficial
effect
on
air
quality
by
reducing
emissions
in
the
Ozone
Transport
Region.
EPA
is
proposing
to
approve
the
Virginia
SIP
revision
for
NSR
in
the
Ozone
Transport
Region,
which
was
submitted
on
March
28,
2005.
EPA
is
soliciting
public
comments
on
the
issues
discussed
in
this
document.
These
comments
will
be
considered
before
taking
final
action.

8
V.
Statutory
and
Executive
Order
Reviews
Under
Executive
Order
12866
(
58
FR
51735,
October
4,
1993),
this
proposed
action
is
not
a
"
significant
regulatory
action"
and
therefore
is
not
subject
to
review
by
the
Office
of
Management
and
Budget.
For
this
reason,
this
action
is
also
not
subject
to
Executive
Order
13211,
"
Actions
Concerning
Regulations
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use"
(
66
Fed.

Reg.
28355
(
May
22,
2001)).
This
action
merely
proposes
to
approve
state
law
as
meeting
Federal
requirements
and
imposes
no
additional
requirements
beyond
those
imposed
by
state
law.

Accordingly,
the
Administrator
certifies
that
this
proposed
rule
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities
under
the
Regulatory
Flexibility
Act
(
5
U.
S.
C.
601
et
seq.).
Because
this
rule
proposes
to
approve
pre­
existing
requirements
under
state
law
and
does
not
impose
any
additional
enforceable
duty
beyond
that
required
by
state
law,
it
does
not
contain
any
unfunded
mandate
or
significantly
or
uniquely
affect
small
governments,
as
described
in
the
Unfunded
Mandates
Reform
Act
of
1995
(
Public
Law
104­
4).
This
proposed
rule
also
does
not
have
a
substantial
direct
effect
on
one
or
more
Indian
tribes,
on
the
relationship
between
the
Federal
Government
and
Indian
tribes,
or
on
the
distribution
of
power
and
responsibilities
between
the
Federal
Government
and
Indian
tribes,
as
specified
by
Executive
Order
13175
(
65
FR
67249,
November
9,
2000),
nor
will
it
have
substantial
direct
effects
on
the
States,

on
the
relationship
between
the
national
government
and
the
States,
or
on
the
distribution
9
of
power
and
responsibilities
among
the
various
levels
of
government,
as
specified
in
Executive
Order
13132
(
64
FR
43255,
August
10,
1999),
because
it
merely
proposes
to
approve
a
state
rule
implementing
a
Federal
requirement,
and
does
not
alter
the
relationship
or
the
distribution
of
power
and
responsibilities
established
in
the
Clean
Air
Act.
This
proposed
rule
also
is
not
subject
to
Executive
Order
13045
(
62
FR
19885,
April
23,
1997),
because
it
is
not
economically
significant.

In
reviewing
SIP
submissions,
EPA's
role
is
to
approve
state
choices,
provided
that
they
meet
the
criteria
of
the
Clean
Air
Act.
In
this
context,
in
the
absence
of
a
prior
existing
requirement
for
the
State
to
use
voluntary
consensus
standards
(
VCS),
EPA
has
no
authority
to
disapprove
a
SIP
submission
for
failure
to
use
VCS.
It
would
thus
be
inconsistent
with
applicable
law
for
EPA,

when
it
reviews
a
SIP
submission,
to
use
VCS
in
place
of
a
SIP
submission
that
otherwise
satisfies
the
provisions
of
the
Clean
Air
Act.
Thus,
the
requirements
of
section
12(
d)
of
the
National
Technology
Transfer
and
Advancement
Act
of
1995
(
15
U.
S.
C.
272
note)
do
not
apply.
As
required
by
section
3
of
Executive
Order
12988
(
61
FR
4729,
February
7,
1996),
in
issuing
this
proposed
rule,
EPA
has
taken
the
necessary
steps
to
eliminate
drafting
errors
and
ambiguity,

minimize
potential
litigation,
and
provide
a
clear
legal
standard
for
affected
conduct.
EPA
has
complied
with
Executive
Order
12630
(
53
FR
8859,
March
15,
1988)
by
examining
the
takings
10
implications
of
the
rule
in
accordance
with
the
"
Attorney
General's
Supplemental
Guidelines
for
the
Evaluation
of
Risk
and
Avoidance
of
Unanticipated
Takings"
issued
under
the
executive
order.
This
proposed
rule,
to
approve
the
Virginia
Department
of
Environmental
Quality
State
Implementation
Plan
revision
request
requiring
implementation
of
NSR
in
the
Virginia
portion
of
the
Ozone
Transport
Region,
does
not
impose
an
information
collection
burden
under
the
provisions
of
the
Paperwork
Reduction
Act
of
1995
(
44
U.
S.
C.
3501
et
seq.).

List
of
Subjects
in
40
CFR
Part
52
Environmental
protection,
Air
pollution
control,
Carbon
monoxide,
Hydrocarbons,
Intergovernmental
relations,
Nitrogen
dioxide,
Ozone,
Particulate
matter,
Reporting
and
recordkeeping
requirements,
Sulfur
oxides,
Volatile
organic
compounds.

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

December
28,
2005
/
s/
___________________________
____________________________
Dated:
Donald
S.
Welsh,
Regional
Administrator,
Region
III.

11
