
[Federal Register: October 22, 2008 (Volume 73, Number 205)]
[Rules and Regulations]               
[Page 62893-62897]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22oc08-15]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2007-0522; FRL-8731-8]

 
Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Major New Source Review for Nonattainment Areas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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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 February 12, 2007. 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 new source review nonattainment areas. 
This action is also providing full approval of a related SIP revision 
submitted by the Commonwealth on December 16, 2003, pertaining to 
amendments made to Virginia's existing nonattainment new source review 
permit program at that time. This action is being taken under the Clean 
Air Act (CAA or the Act).

DATES: Effective Date: This final rule is effective on November 21, 
2008.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2007-0522. All documents in the docket are listed in 
the http://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 either electronically through http://
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

[[Page 62894]]

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 36477), 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 nonattainment new source review (NNSR) areas, as 
submitted to EPA as revisions to the Virginia SIP on February 12, 2007 
and approval of certain other amendments to Virginia regulations 
submitted to EPA on December 16, 2003.
    The February 12, 2007 SIP revision submission consisted of 
amendments to Legislative Rules 9 VAC 5 Chapter 50, Article 4--
Stationary Sources and 9 VAC 5 Chapter 80, Article 9--Permits for 
Construction and Major Modification of Major Stationary Sources of Air 
Pollution which Cause or Contribute to Nonattainment. 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 
December 16, 2003 SIP revision submission consisted of additional 
amendments to Legislative Rule 9 VAC Chapter 80, Article 9--Permits for 
Construction and Major Modification of Major Stationary Sources of Air 
Pollution which Cause or Contribute to Nonattainment.
    In this action, EPA is granting limited approval of the February 
12, 2007 amendments to Chapter 50, Article 4 and Chapter 80, Article 9, 
as well as full approval of the December 16, 2003 amendments to Chapter 
80, Article 9. Virginia also submitted changes to 9 VAC Chapter 80, 
Article 6--Permits for New and Modified Stationary Sources as part of 
the February 12, 2007 SIP revision. However, as stated in the NPR, EPA 
is not taking any action on Chapter 80, Article 6 at this time.

II. Summary of SIP Revision

Why is Virginia changing its NSR program?

    In its December 2002 regulatory 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 51.165 despite some variations 
in their rules from the federal program. 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 
regulations, effective September 1, 2006 for Nonattainment NSR areas?

    Virginia's regulation 9 VAC 5-80-2010 added a new definition for 
``baseline actual emissions'' to reflect changes to the NSR program 
found 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 period by the Board is acceptable, however, the 
Commonwealth's regulations could be interpreted to allow this period to 
be established beyond the 10-year time period allowed in the Federal 
NSR Reform rule.
    As described in our June 27 proposed rule the 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-
2010 by limiting the discretionary lookback period to 10 years. When 
Virginia makes this amendment, they may submit the revised regulation 
for consideration for full approval of the Nonattainment NSR program.
    Despite the fact that the Virginia nonattainment new source review 
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,''

[[Page 62895]]

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 
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 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.
    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.

V. Final Action

    EPA has determined that those regulatory amendments to the 
nonattainment NSR program at Chapter 50, Article 4 and Chapter 80, 
Article 9 that were submitted on February 12, 2007 are being granted 
limited approval as noted in Section III above. EPA has also determined 
that the regulatory amendments to the nonattainment NSR permit program 
at Chapter 80, Article 9, as submitted on December 16, 2003 are fully 
approvable. EPA has determined that these regulatory revisions meet the 
minimum requirements of 40 CFR 51.165 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 (Pub. L. 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 December 22, 2008. 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 
nonattainment new source review program for sources locating or located 
in nonattainment areas may not be challenged later in

[[Page 62896]]

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 9, 2008.
William T. Wisniewski,
Acting Regional Administrator, Region III.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
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

0
2. In Sec.  52.2420, the table in paragraph (c) is amended by:
0
a. Revising the existing entry for 5-50-270.
0
b. Revising the existing entries for 5-80-2000 through 5-80-2090, 5-80-
2100 through 5-80-2140, and 5-80-2150 through 5-80-2190.
0
c. Adding new entries for 5-80-2091, 5-80-2144, 5-80-2200, 5-80-2210, 
5-80-2220, 5-80-2230 and 5-80-2240.
0
d. Removing the existing entries for 5-80-2100 and 5-80-2160.
    The additions and revisions read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

                                  EPA-Approved Regulations in the Virginia SIP
----------------------------------------------------------------------------------------------------------------
  State citation (9 VAC 5                                State                              Explanation [former
        Chapter 80)              Title/subject      effective date    EPA approval date        SIP citation]
----------------------------------------------------------------------------------------------------------------

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                                                  * * * * * * *
                 Chapter 50 Article 4 Standards of Performance for Stationary Sources (Rule 5-4)
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
5-50-270...................  Standards for Major            9/1/06  10/22/08 [Insert page  Changes ``Qualifying
                              Stationary Sources                     number where the       pollutant'' to
                              (Nonattainment                         document begins].      ``Regulated NSR
                              Areas).                                                       pollutant''. Limited
                                                                                            Approval.

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                                                  * * * * * * *
   Chapter 80 Article 9 Permits for Major Stationary Sources and Major Modifications Locating in Nonattainment
                                                      Areas
----------------------------------------------------------------------------------------------------------------
5-80-2000..................  Applicability........          5/1/02  10/22/08 [Insert page  Limited Approval of 9/
                                                            9/1/06   number where the       1/06 amendments.
                                                                     document begins].
5-80-2010..................  Definitions..........          5/1/02  10/22/08 [Insert page  Limited Approval of 9/
                                                            9/1/06   number where the       1/06 amendments.
                                                                     document begins].
5-80-2020..................  General..............          5/1/02  10/22/08 [Insert page  Limited Approval of 9/
                                                            9/1/06   number where the       1/06 amendments.
                                                                     document begins].
5-80-2030..................  Applications.........          5/1/02  10/22/08 [Insert page  Limited Approval of 9/
                                                            9/1/06   number where the       1/06 amendments.
                                                                     document begins].
5-80-2040..................  Application                    5/1/02  10/22/08 [Insert page  Limited Approval of 9/
                              information required.         9/1/06   number where the       1/06 amendments.
                                                                     document begins].
5-80-2050..................  Standards and                  5/1/02  10/22/08 [Insert page  Limited Approval of 9/
                              conditions for                9/1/06   number where the       1/06 amendments.
                              granting permits.                      document begins].
5-80-2060..................  Action on permit               5/1/02  10/22/08 [Insert page  Limited Approval of 9/
                              applications.                 9/1/06   number where the       1/06 amendments.
                                                                     document begins].
5-80-2070..................  Public participation.          5/1/02  10/22/08 [Insert page  Limited Approval of 9/
                                                            9/1/06   number where the       1/06 amendments.
                                                                     document begins].
5-80-2080..................  Compliance                     5/1/02  10/22/08 [Insert page  Limited Approval of 9/
                              determination and             9/1/06   number where the       1/06 amendments.
                              verification by                        document begins].
                              performance testing.
5-80-2090..................  Application review             5/1/02  10/22/08 [Insert page  Limited Approval of 9/
                              and analysis.                 9/1/06   number where the       1/06 amendments.
                                                                     document begins].
5-80-2091..................  Source Obligation....          9/1/06  10/22/08 [Insert page  New. Limited
                                                                     number where the       Approval.
                                                                     document begins].

[[Page 62897]]


5-80-2110..................  Interstate Pollution           5/1/02  10/22/08 [Insert page  Limited Approval of 9/
                              Abatement.                    9/1/06   number where the       1/06 amendments.
                                                                     document begins].
5-80-2120..................  Offsets..............          5/1/02  10/22/08 [Insert page  Limited Approval of 9/
                                                            9/1/06   number where the       1/06 amendments.
                                                                     document begins].
5-80-2130..................  De minimus increases           5/1/02  10/22/08 [Insert page  Limited Approval of 9/
                              and stationary                9/1/06   number where the       1/06 amendments.
                              source modification                    document begins].
                              alternatives for
                              ozone nonattainment
                              areas classified as
                              serious or severe in
                              9 VAC 5-20-204.
5-80-2140..................  Exception............          5/1/02  10/22/08 [Insert page  Limited Approval of 9/
                                                            9/1/06   number where the       1/06 amendments.
                                                                     document begins].
5-80-2144..................  Actuals plantwide              9/1/06  10/22/08 [Insert page  New. Limited
                              applicability limits                   number where the       Approval.
                              (PALs).                                document begins].
5-80-2150..................  Compliance with local          5/1/02  10/22/08 [Insert page  Limited Approval of 9/
                              zoning requirements.          9/1/06   number where the       1/06 amendments.
                                                                     document begins].
5-80-2170..................  Transfer of permits..          5/1/02  10/22/08 [Insert page  Limited Approval of 9/
                                                            9/1/06   number where the       1/06 amendments.
                                                                     document begins].
5-80-2180..................  Permit invalidation,           5/1/02  10/22/08 [Insert page  Limited Approval of 9/
                              revocation and                9/1/06   number where the       1/06 amendments.
                              enforcement.                           document begins].
5-80-2190..................  Existence of permit            5/1/02  10/22/08 [Insert page  Limited Approval of 9/
                              no defense.                   9/1/06   number where the       1/06 amendments.
                                                                     document begins].
5-80-2200..................  Changes to permits...          5/1/02  10/22/08 [Insert page  New. Limited Approval
                                                            9/1/06   number where the       of 9/1/06
                                                                     document begins].      amendments.
5-80-2210..................  Administrative permit          5/1/02  10/22/08 [Insert page  New. Limited Approval
                              amendments.                   9/1/06   number where the       of 9/1/06
                                                                     document begins].      amendments.
5-80-2220..................  Minor permit                   5/1/02  10/22/08 [Insert page  New. Limited Approval
                              amendments.                   9/1/06   number where the       of 9/1/06
                                                                     document begins].      amendments.
5-80-2230..................  Significant amendment          5/1/02  10/22/08 [Insert page  New. Limited Approval
                              procedures.                   9/1/06   number where the       of 9/1/06
                                                                     document begins].      amendments.
5-80-2240..................  Reopening for cause..          5/1/02  10/22/08 [Insert page  New. Limited Approval
                                                            9/1/06   number where the       of 9/1/06
                                                                     document begins].      amendments.

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 [FR Doc. E8-25019 Filed 10-21-08; 8:45 am]

BILLING CODE 6560-50-P
