	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

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

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

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 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).  

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-2007-0522.  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 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. 

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.    

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,” 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 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
(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
nonattainment new source review program for sources locating or located
in nonattainment 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 existing entry for 5-50-270.

 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.  

 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.

 d. Removing the existing entries for 5-80-2100 and 5-80-2160. 		

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)

*   *   *   *    *    *    *	

5-50-270 	Standards for Major Stationary Sources (Nonattainment Areas) 
9/1/06	[Insert Federal Register publication date] [Insert page number
where the document begins]

	Changes “Qualifying” pollutant” to “Regulated NSR”
pollutant”

Limited Approval



*   *   *   *    *    *    *	



Chapter 80

	

Article 9, Permits for Major Stationary Sources and Major Modifications
Locating in Nonattainment Areas

5-80-2000	Applicability	5/1/02

9/1/06

	[Insert Federal Register publication date] [Insert page number where
the document begins]

	Limited Approval of 9/1/06 amendments

5-80-2010	Definitions	5/1/02

9/1/06

	[Insert Federal Register publication date] [Insert page number where
the document begins]

	Limited Approval of 9/1/06 amendments

5-80-2020	General	5/1/02  9/1/06	[Insert Federal Register publication
date] [Insert page number where the document begins]

	Limited Approval of 9/1/06 amendments

5-80-2030	Applications	5/1/02  9/1/06	[Insert Federal Register
publication date] [Insert page number where the document begins]

	Limited Approval of 9/1/06 amendments

5-80-2040	Application information required	5/1/02

9/1/06

	[Insert Federal Register publication date] [Insert page number where
the document begins]

	Limited Approval of 9/1/06 amendments

5-80-2050

	Standards and conditions for granting permits	5/1/02

9/1/06

	[Insert Federal Register publication date] [Insert page number where
the document begins]

	Limited Approval of 9/1/06 amendments

5-80-2060	Action on permit applications	5/1/02

9/1/06

	[Insert Federal Register publication date] [Insert page number where
the document begins]

	Limited Approval of 9/1/06 amendments

5-80-2070	Public participation	5/1/02

9/1/06

	[Insert Federal Register publication date] [Insert page number where
the document begins]

	Limited Approval of 9/1/06 amendments

5-80-2080	Compliance determination and verification by performance
testing	5/1/02

9/1/06

	[Insert Federal Register publication date] [Insert page number where
the document begins]

	Limited Approval of 9/1/06 amendments

5-80-2090	Application review and analysis	5/1/02

9/1/06

	[Insert Federal Register publication date] [Insert page number where
the document begins]

	Limited Approval of 9/1/06 amendments

5-80-2091	Source Obligation	9/1/06	[Insert Federal Register publication
date] [Insert page number where the document begins]

	New

Limited Approval

5-80-2110	Interstate Pollution Abatement	5/1/02

9/1/06

	[Insert Federal Register publication date] [Insert page number where
the document begins]

	Limited Approval of 9/1/06 amendments

5-80-2120	Offsets	5/1/02

9/1/06

	[Insert Federal Register publication date] [Insert page number where
the document begins]

	Limited Approval of 9/1/06 amendments

5-80-2130	De minimus increases and stationary source modification
alternatives for ozone nonattainment areas classified as serious or
severe in 9 VAC 5-20-204	5/1/02

9/1/06

	[Insert Federal Register publication date] [Insert page number where
the document begins]

	Limited Approval of 9/1/06 amendments

5-80-2140	Exception	5/1/02

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

	Limited Approval of 9/1/06 amendments

5-80-2144	Actuals plantwide applicability limits (PALs)	9/1/06	[Insert
Federal Register publication date] [Insert page number where the
document begins]

	New

Limited Approval

5-80-2150	Compliance with local zoning requirements	5/1/02

9/1/06

	[Insert Federal Register publication date] [Insert page number where
the document begins]

	Limited Approval of 9/1/06 amendments

5-80-2170	Transfer of permits	5/1/02

9/1/06

	[Insert Federal Register publication date] [Insert page number where
the document begins]

	Limited Approval of 9/1/06 amendments

5-80-2180	Permit invalidation, revocation and enforcement	5/1/02

9/1/06

	[Insert Federal Register publication date] [Insert page number where
the document begins]

	Limited Approval of 9/1/06 amendments

5-80-2190	Existence of permit no defense	5/1/02

9/1/06

	[Insert Federal Register publication date] [Insert page number where
the document begins]

	Limited Approval of 9/1/06 amendments

5-80-2200	Changes to permits	5/1/02

9/1/06

	[Insert Federal Register publication date] [Insert page number where
the document begins]

	New

Limited Approval of 9/1/06 amendments

5-80-2210	Administrative permit amendments	5/1/02

9/1/06

	[Insert Federal Register publication date] [Insert page number where
the document begins]

	New

Limited Approval of 9/1/06 amendments

5-80-2220	Minor permit amendments	5/1/02

9/1/06

	[Insert Federal Register publication date] [Insert page number where
the document begins]

	New

Limited Approval of 9/1/06 amendments

5-80-2230	Significant amendment procedures	5/1/02

9/1/06

	[Insert Federal Register publication date] [Insert page number where
the document begins]

	New

Limited Approval of 9/1/06 amendments

5-80-2240	Reopening for cause	5/1/02

9/1/06

	[Insert Federal Register publication date] [Insert page number where
the document begins]

	New

Limited Approval of 9/1/06 amendments



*   *   *   *    *    *    *	



*****	

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