 	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

	[EPA-R03-OAR-2007-0521; FRL-         ]

	Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Virginia Major New Source Review, Prevention of Significant
Deterioration (PSD)

AGENCY:	Environmental Protection Agency (EPA).

ACTION:	Final rule.

SUMMARY:  EPA is granting limited approval of a State Implementation
Plan (SIP) revision submitted by the Commonwealth of Virginia.  This
revision action establishes the limited approval of a State
Implementation Plan (SIP) revision submitted by the Commonwealth of
Virginia on October 10, 2006.  The intended effect of this action is to
grant limited approval of the September 1, 2006 regulatory amendments to
Virginia’s existing new source review permit program for owners of
sources located or locating in prevention of significant deterioration
(PSD) areas.  This action is being taken under the Clean Air Act (CAA or
the Act).  

EFFECTIVE DATE:  This final rule is effective on [insert date 30 days
from date of publication].

ADDRESSES:  EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2007-0521.  All documents in the docket are listed in
the www.regulations.gov website.   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 either electronically through www.regulations.gov or in hard
copy for public inspection 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
e-

mail at mccauley.sharon@epa.gov.  

SUPPLEMENTARY INFORMATION:  

I.	Background	

On June 27, 2008 (73 FR 36481), EPA published a notice of proposed
rulemaking (NPR) 

proposing limited approval of amendments to Virginia’s existing new
source review permit 

program for owners of sources located or locating in prevention of
significant deterioration 

(PSD) areas.  The formal SIP revision request was submitted by Virginia
on October 10, 2006.  

The request consisted of changes to Legislative Rules 9 VAC 5 Chapter
50, Article 4 – 

Stationary Sources and 9 VAC 5 Chapter 80, Article 8 - Permits for
Construction and Major 

Modification of Major Stationary Sources of Air Pollution for the
Prevention of Significant 

Deterioration.  These rules were adopted by the Commonwealth of Virginia
State Air Pollution 

Control Board on June 21, 2006 and became effective September 1, 2006. 
The Commonwealth 

adopted the regulations in order to meet the relevant plan requirements
of 40 CFR 51.166.  Other 

specific requirements of this SIP revision and the rationale for EPA's
proposed action are 

explained in the NPR and will not be restated here.  No public comments
were received on the 

NPR.

In this action, EPA is granting limited approval of the changes found in
Chapter 50, Article 4 and 

Chapter 80, Article 8.   Virginia also submitted changes to 9 VAC
Chapter 80 Article 6 – Permits 

for New and Modified Stationary Sources as part of the SIP revision. 
However, as stated in the 

NPR, EPA is not taking any action on Article 6 at this time.   

Summary of SIP Revision

What is being addressed in this document?

Virginia currently has an EPA-approved NSR program for new and modified
sources.  In this 

action, EPA is granting limited approval of the Virginia
pre-construction permitting program as 

submitted on October 10, 2006 for sources located or locating in PSD
areas.  

Why is Virginia changing its New Source Review program?

In EPA’s December 2002 regulatory new source review reform action, EPA
changed many 

aspects of the regulations governing the PSD and nonattainment NSR
programs collectively 

referred to as “NSR”.  Virginia accepted the conceptual framework of
EPA’s NSR reform 

revisions but tailored the program to their State-specific objectives. 
Virginia’s regulations differ 

in some respects from EPA’s regulations.  However, these differences
are not significant.   EPA 

has concluded that Virginia’s regulations conform to the minimum
program elements in 40 CFR 

51.166 despite some variations in their rules from the federal program. 
 All notable variations 

were described in the proposal action and will not be restated here.  

III.  Limited Approval

Why is EPA granting only “limited approval” of Virginia’s NSR
Reform regulations for 

PSD areas?

Virginia Regulation 9 VAC 5-80-1615 added a new definition to reflect
changes to the NSR 

program in the 2002 Federal NSR Reform rule.  Virginia’s definition
for “baseline actual 

emissions” varies from the Federal definition at 40 CFR 51.166(b)(47)
in two ways.  First, for 

both electric generating units (EGUs) and non-EGUs, Virginia’s rule
allows the use of different 

baselines for different pollutants if the owner can demonstrate to the
satisfaction of the State Air 

Pollution Control Board (Board) that a different baseline period for a
different pollutant(s) is 

more appropriate due to extenuating circumstances.  This is acceptable
to EPA. 

However, for non-EGUs, the 24-month baseline period must occur within
the five-year period 

preceding the date the owner begins actual construction or the permit
application is deemed 

complete, whichever is earlier, unless the Board allows a different time
period that it deems is 

more representative of normal source operations.  Allowing a more
representative time period is 

acceptable, however, the Commonwealth’s regulations could be
interpreted to allow this period 

to be established beyond the 10-year period allowed in the federal NSR
Reform rule.  As 

described in our June 27 proposed rule, Virginia regulations meet the
general federal criteria 

for expanding the lookback period beyond the old requirement of the most
recent 24-month 

period, and in this respect are consistent with federal requirements.

EPA is granting limited approval because the language of the regulation
does not limit the look-

back period to the federally mandated 10 years.  Virginia has
represented to EPA that the 

regulation was not intended to allow sources to extend the look-back
period beyond 10 years.  

EPA would look unfavorably upon any use of discretion by Virginia that
would allow for 

baselines that exceed a 10-year lookback period.  EPA expects Virginia
to correct the 

definition at 9 VAC 5-80-1615 by limiting the discretionary lookback
period to 10 years.  When 

Virginia makes this amendment, they may submit the revised regulations
for consideration for 

full approval of the PSD program.

Despite the fact that the Virginia PSD regulations may literally be
construed to allow for a source 

to look beyond the 10 years prescribed by the Federal regulations, the
Virginia regulations 

nevertheless will strengthen the Virginia SIP.

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 (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 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.”   

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 Clean Air Act is likewise
unaffected by this, or any, state audit privilege or immunity law.

V.	Final Action

EPA is granting limited approval of the Virginia Major New Source Review
regulations for facilities located or locating in PSD areas as a
revision to the Virginia SIP.  EPA has determined that the regulatory
amendments to Virginia’s PSD permit program at Chapter 50, Article 4
and Chapter 80, Article 8, as submitted on October 10, 2006 meet the
minimum requirements of 40 CFR 51.166 and the Clean Air Act.  

VI.  Statutory and Executive Order Reviews

A.  General Requirements 

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 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 FR 28355, May 22, 2001).  This action merely approves state law
as meeting Federal requirements and imposes no additional requirements
beyond those imposed by state law.  Accordingly, the Administrator
certifies that this 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 approves 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 rule also does not have tribal implications
because it will 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).  This action also
does not have Federalism implications because it does not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132 (64 FR 43255, August 10, 1999).  This
action merely approves 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 rule also is
not subject to Executive Order 13045 (62 FR 19885, April 23, 1997),
because it approves a state rule implementing a Federal standard.  

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.  This rule does not impose an
information collection burden under the provisions of the 

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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 rule 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.  This rule 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 Clean Air Act, petitions for judicial
review of this action must be filed in the United States Court of
Appeals for the appropriate circuit by [insert date 60 days from date of
publication of this document in the Federal Register].  Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule 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 

granting limited approval of the Virginia NSR program for sources
locating or located in PSD areas 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.

October 9, 2008                                               
______________/s/_____________    

Dated:                            				William T. Wisniewski,            
                    								Acting Regional Administrator,

                                  					Region III.

40 CFR Part 52 is amended as follows: 

PART 52 - [AMENDED] 

1.  The authority citation for 40 CFR part 52 continues to read as
follows: 

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

Subpart VV ( Virginia

2.  In ( 52.2420, the table in paragraph (c) is amended by

  a. Revising the entries for 5-50-250 and 5-50-280.

  b. Removing the entries for 5-80-1700 through 5-80-1970 inclusive and
replacing them with entries for 5-80-1605 through 5-80-1995 inclusive.

 The amendments read as follows:

( 52.2420  	Identification of plan.

*      *    *    *    *	

 (c) * * * 

	EPA-APPROVED REGULATIONS IN THE VIRGINIA SIP

State citation

(9 VAC 5 Chapter 80)	

Title/subject	

State effective date	

EPA approval date	

Explanation

[former SIP citation]



*******



Chapter 50

	

Article 4  Standards of Performance for Stationary Sources (Rule 5-4)

*******

5-50-250	Definitions

	9/1/06	[Insert Federal Register publication date] [Insert page number
where the document begins]

	Revised definition of  New Source Review Program

Limited Approval 

*******

5-50-280 	Standards for Major Stationary Sources (Prevention of
Significant Deterioration Areas)

	9/1/06	[Insert Federal Register publication date] [Insert page number
where the document begins]

	Changes “Pollutant subject to regulation under the federal Clean Air
Act” to “Regulated NSR pollutant” 

Limited Approval 



*   *   *   *    *    *    *	



Chapter 80

	

Article 8, Permits for Major Stationary Sources and Major Modifications
Locating in Prevention of Significant Deterioration Areas

5-80-1605	Applicability	9/1/06	[Insert Federal Register publication
date] [Insert page number where the document begins]

	5-80-1700

Limited Approval

5-80-1615	Definitions	9/1/06	[Insert Federal Register publication date]
[Insert page number where the document begins]

	5-80-1710. 

Limited Approval 

5-80-1625	General	9/1/06	[Insert Federal Register publication date]
[Insert page number where the document begins]

	5-80-1720

Limited Approval

5-80-1635	Ambient Air Increments	9/1/06	[Insert Federal Register
publication date] [Insert page number where the document begins]

	5-80-1730

Limited Approval

5-80-1645	Ambient Air Ceilings	9/1/06	[Insert Federal Register
publication date] [Insert page number where the document begins]

	5-80-1740

Limited Approval

5-80-1655

	Applications	9/1/06	[Insert Federal Register publication date] [Insert
page number where the document begins]

	5-80-1750

Limited Approval

5-80-1665	Compliance with local zoning requirements	9/1/06	[Insert
Federal Register publication date] [Insert page number where the
document begins]

	5-80-1760

Limited Approval

5-80-1675	Compliance determination and verification by performance
testing	9/1/06	[Insert Federal Register publication date] [Insert page
number where the document begins]

	5-80-1770

Limited Approval

5-80-1685	Stack Heights	9/1/06	[Insert Federal Register publication
date] [Insert page number where the document begins]

	5-80-1780

Limited Approval

5-80-1695	Exemptions	9/1/06	[Insert Federal Register publication date]
[Insert page number where the document begins]

	New

Limited Approval

5-80-1705	Control technology review	9/1/06	[Insert Federal Register
publication date] [Insert page number where the document begins]

	5-80-1800

Limited Approval

5-80-1715	Source impact analysis	9/1/06	[Insert Federal Register
publication date] [Insert page number where the document begins]

	5-80-1810

Limited Approval

5-80-1725	Air quality models	9/1/06	[Insert Federal Register publication
date] [Insert page number where the document begins]

	5-80-1820

Limited Approval

5-80-1735	Air quality analysis	9/1/06	[Insert Federal Register
publication date] [Insert page number where the document begins]

	5-80-1830

Limited Approval

5-80-1745	Source Information	9/1/06	[Insert Federal Register publication
date] [Insert page number where the document begins]

	5-80-1840

Limited Approval

5-80-1755	Additional impact analysis	9/1/06	[Insert Federal Register
publication date] [Insert page number where the document begins]

	5-80-1850

Limited Approval

5-80-1765	Sources affecting federal class I areas – additional
requirements	9/1/06	[Insert Federal Register publication date] [Insert
page number where the document begins]

	5-80-1860

Limited Approval

5-80-1775	Public participation	9/1/06	[Insert Federal Register
publication date] [Insert page number where the document begins]

	5-80-1870

Limited Approval

5-80-1785	Source obligation	9/1/06	[Insert Federal Register publication
date] [Insert page number where the document begins]

	5-80-1880

Limited Approval

5-80-1795	Environmental impact statements	9/1/06	[Insert Federal
Register publication date] [Insert page number where the document
begins]

	5-80-1890

Limited Approval

5-80-1805	Disputed permits	9/1/06	[Insert Federal Register publication
date] [Insert page number where the document begins]

	5-80-1900

Limited Approval

5-80-1815	Interstate pollution abatement	9/1/06	[Insert Federal Register
publication date] [Insert page number where the document begins]

	5-80-1910

Limited Approval

5-80-1825	Innovative control technology	9/1/06	[Insert Federal Register
publication date] [Insert page number where the document begins]

	5-80-1920

Limited Approval

5-80-1835	Reserved	9/1/06	[Insert Federal Register publication date]
[Insert page number where the document begins]

	New

Limited Approval

5-80-1845	Reserved	9/1/06	Insert Federal Register publication date]
[Insert page number where the document begins]

	New

Limited Approval



5-80-1855	Reserved	9/1/06	Insert Federal Register publication date]
[Insert page number where the document begins]

	New

Limited Approval

5-80-1865	Actuals plantwide applicability (PAL)	9/1/06	Insert Federal
Register publication date] [Insert page number where the document
begins]

	New

Limited Approval

5-80-1925	Changes to permits	9/1/06	Insert Federal Register publication
date] [Insert page number where the document begins]

	New

Limited Approval

5-80-1935	Administrative permit amendments	9/1/06	Insert Federal
Register publication date] [Insert page number where the document
begins]

	New

Limited Approval

5-80-1945	Minor permit amendments	9/1/06	Insert Federal Register
publication date] [Insert page number where the document begins]

	New

Limited Approval

5-80-1955	Significant amendment procedures	9/1/06	Insert Federal
Register publication date] [Insert page number where the document
begins]

	New

Limited Approval

5-80-1965	Reopening for cause	9/1/06	Insert Federal Register publication
date] [Insert page number where the document begins]

	New

Limited Approval

5-80-1975	Transfer of permits	9/1/06	Insert Federal Register publication
date] [Insert page number where the document begins]

	5-80-1940

Limited Approval

5-80-1985	Permit invalidation, revocation, and enforcement	9/1/06	Insert
Federal Register publication date] [Insert page number where the
document begins]

	5-80-1950

Limited Approval

5-80-1995	Existence of permit no defense	9/1/06	Insert Federal Register
publication date] [Insert page number where the document begins]

	New

Limited Approval



*   *   *   *    *    *    *	



*     *     *    *     *	

   

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