
[Federal Register Volume 77, Number 210 (Tuesday, October 30, 2012)]
[Rules and Regulations]
[Pages 65627-65630]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-26539]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2012-0169; FRL-9745-5]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Deferral for CO2 Emissions From Bioenergy and other Biogenic 
Sources Under the Prevention of Significant Deterioration Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the Virginia Department of Environmental Quality (VADEQ) 
on December 14, 2011. This revision defers until July 21, 2014 the 
application of the Prevention of Significant Deterioration (PSD) 
permitting requirements to biogenic carbon dioxide (CO2) 
emissions from bioenergy and other biogenic stationary sources in the 
Commonwealth of Virginia. This action is being taken under the Clean 
Air Act (CAA).

DATES: This final rule is effective on November 29, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2012-0169. All documents in the docket are listed in 
the 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 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: David Talley, (215) 814-2117, or by 
email at talley.david@epa.gov.

[[Page 65628]]


SUPPLEMENTARY INFORMATION:

I. Background

    Throughout this document, whenever ``we,'' ``us,'' or ``our'' is 
used, we mean EPA. On April 18, 2012, (77 FR 23178), EPA published a 
notice of proposed rulemaking (NPR) for the Commonwealth of Virginia. 
The NPR proposed approval of a revision to the Virginia SIP which would 
defer until July 21, 2014 the application of PSD permitting 
requirements to biogenic CO2 emissions from bioenergy and 
other biogenic stationary sources in the commonwealth of Virginia. 
Other specific requirements of Virginia's SIP revision and the 
rationale for EPA's proposed action are explained in the NPR and will 
not be restated here. The formal SIP revision was submitted by VADEQ on 
December 14, 2011.

II. Summary of SIP Revision

    EPA incorporated the biomass deferral into the regulations 
governing state programs and into the Federal PSD program by amending 
the definition of ``subject to regulation'' under 40 CFR 51.166 and 
52.21 respectively. Virginia has adopted this same approach. The SIP 
revision incorporates the Biomass Deferral into Virginia's PSD program 
by amending the definition of ``subject to regulation'' under 9VAC5-85-
50C. The language adopted by Virginia mirrors the language in the 
Federal regulations. EPA last took action on these provisions on May 
13, 2011 (76 FR 27898). In addition to the incorporation of the Biomass 
Deferral, the SIP revision makes a minor, clarifying revision to 9VAC5-
85-50B.

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 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. 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 CAA is likewise unaffected by 
this, or any, state audit privilege or immunity law.

IV. EPA's Response to Comments Received on the Proposed Action

    EPA received two sets of timely public comments. Both sets were 
supportive of our proposed action, and are included in the docket. 
While it is not generally our practice to respond to specific comments 
when those comments are in support of a proposed action, one of the 
submitted comments contained some factual inaccuracies which we feel 
should be addressed and corrected for the record. One commenter wrote 
in closing: ``Because the PSD provisions of the Biomass Deferral have 
already been incorporated into Virginia's SIP and approved by EPA in 
2011, the current 2012 proposed SIP revisions incorporate the Title V 
provisions of the Biomass Deferral through (sic) amendments to 9VAC5 
Chapter 85, Permits For Stationary Sources of Pollutants Subject to 
Regulation, Part II--Federal (Title V) Operating Permit Actions. We 
agree with EPA's conclusion that the proposed Title V amendments to 
Virginia's SIP are consistent with federal requirements and should 
therefore be approved as proposed.'' EPA did not ``incorporate the PSD 
provisions of the Biomass Deferral into Virginia's SIP in 2011.'' 
Indeed, as we stated in our notice of proposed rulemaking and 
reiterated earlier, the purpose of the present rulemaking action is to 
incorporate the Biomass Deferral provisions into the Virginia SIP. It 
is not clear to which 2011 action the commenter is referring. On May 
13, 2011, EPA took final action to approve the Tailoring Rule 
provisions into the Virginia SIP (76 FR 27898). However, the Biomass 
Deferral is a separate rulemaking action and was not addressed at that 
time. Furthermore, as we stated in our notice of proposed rulemaking, 
the present rulemaking action does not address the title V provisions 
of the Biomass Deferral, and addresses only Virginia's PSD program 
(See, 77 FR 23179, Footnote No. 1).

V. Final Action

    EPA is approving the revisions to 9VAC5-85-50 into the Virginia 
SIP.

[[Page 65629]]

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).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

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. 
804(2).

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 December 31, 2012. 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. This action pertaining to GHG permitting under Virginia's PSD 
program 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.

    Dated: October 10, 2012.
 W.C. Early,
Acting Regional Administrator, Region III.

    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 revising 
the entry for Chapter 85, Section 5-85-50 to read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

                                 EPA-Approved Virginia Regulations and Statutes
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                                                            State
          State citation               Title/subject      effective     EPA approval date    Explanation [former
                                                             date                               SIP citation]
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                                                  * * * * * * *
9 VAC 5, Chapter 85..............        Permits for Stationary Sources of Pollutants Subject to Regulation
 
                                                  * * * * * * *
Part III.........................              Prevention of Significant Deterioration Permit Actions
 
                                                  * * * * * * *
5-85-50..........................  Definitions.........      11/9/11  10/30/12 [Insert      Revised definition
                                                                       page number where     of ``subject to
                                                                       the document          regulation.''
                                                                       begins].
 
                                                  * * * * * * *
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[FR Doc. 2012-26539 Filed 10-29-12; 8:45 am]
BILLING CODE 6560-50-P


