
[Federal Register Volume 82, Number 73 (Tuesday, April 18, 2017)]
[Proposed Rules]
[Pages 18272-18275]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-07820]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2016-0052; FRL-9961-50-Region 3]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve revisions to the Commonwealth of Virginia state implementation 
plan (SIP). The revisions amend Virginia's major source New Source 
Review (NSR) regulations to make them consistent with the federal 
program. EPA is proposing to approve these revisions to the Virginia 
SIP in accordance with the requirements of the Clean Air Act (CAA).

DATES: Written comments must be received on or before May 18, 2017.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2016-0052 at http://www.regulations.gov, or via email to 
miller.linda@epa.gov. For comments submitted at Regulations.gov, follow 
the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be confidential business information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the ``For Further Information Contact'' section. For the 
full EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: David Talley, (215) 814-2117, or by 
email at talley.david@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    The CAA's NSR programs are preconstruction review and permitting 
programs applicable to new and modified stationary sources of air 
pollutants regulated under the CAA. The NSR programs of the CAA include 
a combination of air quality planning and air pollution control 
technology program requirements. Briefly, section 109 of the CAA 
requires EPA to promulgate primary national ambient air quality 
standards (NAAQS) to protect public health and secondary NAAQS to 
protect public welfare. Once EPA sets those standards, states must 
develop, adopt, and submit to EPA for approval a SIP that contains 
emissions limitations and other control measures to attain and maintain 
the NAAQS. Pursuant to section 110, each SIP is required to contain a 
preconstruction review program for the construction and modification of 
any stationary source of air pollution to assure that the NAAQS are 
achieved and maintained; to protect areas of clean air; to protect air 
quality-related values (such as visibility) in national parks and other 
areas; to assure that appropriate emissions controls are applied; to 
maximize opportunities for economic development consistent with the 
preservation of clean air resources; and, to ensure that any decision 
to increase air pollution is made only after full public consideration 
of the consequences of the decision. Section 172 of the CAA requires a 
permit program in areas which are not attaining the NAAQS, and section 
173 provides the specific requirements for that permit program.
    On October 16, 2015, the Virginia Department of Environmental 
Quality (VADEQ), on behalf of the Commonwealth of Virginia, submitted a 
formal revision to the Virginia SIP. The SIP revision consists of 
amendments to the preconstruction permit requirements under VADEQ's 
major NSR permit program. The revision affects sources subject to 
VADEQ's Prevention of Significant Deterioration (PSD) program, which 
applies in areas which are in attainment with (or unclassifiable for) 
the NAAQS, as well as affecting sources subject to its nonattainment 
NSR permit program, applicable in areas not in attainment with the 
NAAQS. By letter dated March 1, 2017, VADEQ officially withdrew a small 
and specific portion of the October 16, 2015 submittal from 
consideration for approval into the Virginia SIP. A copy of the letter 
has been included in the docket for this action. Further discussion of 
the withdrawal is provided in section II.A of this notice.

II. Summary of SIP Revision and EPA Analysis

    Generally, the October 16, 2015 SIP submittal revision (as amended 
March 1, 2017) (hereinafter referred to as the 2015 NSR SIP Revision) 
is intended to make the Virginia Administrative Code regulations at 
9VAC5 consistent with the federal NSR program at 40 CFR 51.165 and 
51.166. The specific changes to 9VAC5 are intended to: (1) Allow the 
use of a 10-year lookback period to calculate pre-change emissions for 
sources other than electric utility steam generating units (EGUs); (2) 
Allow the use of different lookback periods for different regulated NSR 
pollutants; (3) Extend the effective period for plantwide applicability 
limits (PALs) to 10 years; and, (4) Allow replacement units to be 
treated as existing units, and thus provide the ability to use baseline 
actual and projected actual emissions when determining applicability. 
Additionally, there are a number of minor changes which are strictly 
administrative in nature, consisting of small grammatical revisions, or 
re-numbering. EPA is proposing to approve VADEQ's 2015 NSR SIP Revision 
as a revision to the Virginia SIP because it meets the federal 
requirements of 40 CFR 51.165 and 51.165, and CAA sections 110(a) and 
173. Additionally, the revisions are in accordance with section 110(l) 
of the CAA because they will not interfere with any applicable 
requirement concerning attainment and reasonable further progress, or 
any other applicable CAA requirement.

A. Baseline Actual Emissions

    NSR applicability is determined by comparing the pre-change 
emissions of the project to the post-change emissions and determining 
whether the net increase is ``significant.'' For new units, pre-change 
(baseline) emissions are

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zero. For modified units, sources must calculate baseline actual 
emissions (BAE). For sources other than EGUs, the federal PSD and 
nonattainment NSR regulations provide for the calculation of BAE using 
``. . . the average rate, in tons per year, at which the emissions unit 
actually emitted the pollutant during any consecutive 24-month period 
selected by the owner or operator within the 10-year period immediately 
preceding either the date the owner or operator begins actual 
construction of the project, or the date a complete permit application 
is received by the reviewing authority . . .'' See 40 CFR 
51.165(a)(1)(xxxv)(B) and 51.166(b)(47)(ii). VADEQ's currently approved 
BAE definitions, codified at 9VAC5-80 sections 1615C (PSD) and 2010C 
(nonattainment NSR), provide for a 5-year lookback period. The 2015 NSR 
SIP Revision includes VADEQ's revised definitions of BAE to provide for 
a 10-year lookback period for non EGUs, consistent with the federal 
counterpart.
    When EPA originally approved the 5-year lookback into VADEQ's 
nonattainment NSR and PSD programs, limited approval was granted. See 
73 FR 62893, 62897 (October 22, 2008). The previous definitions of BAE 
at 9VAC5-80 sections 1615C and 2010C in VADEQ's June 27, 2008 SIP 
submittals included the 5-year lookback which EPA found approvable, 
despite being different from the federal lookback period. However, 
VADEQ's regulations at the time in sections 1615C and 2010C also 
included provisions for the use of a different time period to calculate 
BAE if it was found to be more representative of normal operations. In 
our October 22, 2008 final rulemaking notice, EPA raised concerns that 
this provision could allow for the use of a lookback period that 
extended beyond the ten years allowed by the federal programs for PSD 
and NSR. However, EPA noted that because VADEQ had affirmed that it was 
not its intention to extend the lookback period beyond ten years, a 
limited approval was justified. See 73 FR at 62898. In VADEQ's 2015 NSR 
SIP Revision submittal, the provision allowing for the use of a 
different lookback period if it was found to be more representative of 
normal operations was struck from the definition of BAE at 9VAC5-80 
section 1615C, making it consistent with the federal counterpart. 
However, that provision was inadvertently left in the definition of BAE 
in the version of 9VAC5-80 section 2010C for NSR. By letter dated March 
1, 2017, VADEQ officially withdrew from EPA's consideration for 
inclusion into the SIP the portion of the definition of BAE at section 
2010C stating, ``The board will allow the use of another time period 
upon a determination that it is more representative of normal source 
operation.'' Thus, EPA finds the revised definition of BAE at 9VAC5-80 
section 2010C (with the provision for a different lookback period 
stricken) fully approvable as the definition is consistent with federal 
CAA requirements. EPA expects that the sentence withdrawn from the SIP 
submittal will be removed from the Virginia Code as soon as practicable 
as Virginia affirmed in its March 1, 2017 letter, and that VADEQ will 
implement its NSR program consistent with the approved SIP and the 
federal requirements for NSR in the interim. With this approval, EPA 
would also remove its prior limited approval for these regulations.
    Finally, the federal requirement for calculating BAE for PSD and 
NSR provide for the use of different 24-month periods for different 
regulated NSR pollutants. See 40 CFR 51.165(a)(1)(xxxv)(B)(4) and 
51.166(b)(47)(ii)(c). Under VADEQ's currently SIP-approved BAE 
definitions at 9VAC5-80 sections 1615C and 2010C, and 9VAC5-85 section 
50, sources were required to use the same 24-month period for all 
regulated NSR pollutants. VADEQ has revised these provisions to allow 
for the use of different 24-month periods for different regulated NSR 
pollutants for both PSD and NSR and has submitted these revised 
definitions in 9VAC5-80 sections 1615C and 2010C and 9VAC5-85 section 
50 in its 2015 NSR SIP Revision to be consistent with the federal 
requirements relating to different lookback periods for different 
regulated NSR pollutants. Because these revisions are consistent with 
federal definitions in 40 CFR 51.165 and 51.166 for using different 24-
month periods for different regulated NSR pollutants, EPA finds these 
additional revisions in 9VAC5-80 sections 1615C and 2010C and 9VAC5-85 
section 50 approvable in accordance with CAA requirements.

B. Plantwide Applicability Limits (PALs)

    Federal requirements for PALs include an effective period of ten 
years for the plantwide permit.\1\ See 40 CFR 51.165(f) et seq and 
51.166(w) et seq. VADEQ's currently-SIP approved regulations only 
provided for a 5-year effective period for such plantwide permits. The 
2015 NSR SIP Revision includes amended versions of 9VAC-5-80 sections 
1615C, 1865C(1)(f), 2010C, and 2144C(1)(f), as well as 9VAC5-85-50, to 
provide for a PAL effective period of ten years, consistent with the 
federal regulations providing for a ten-year PAL effective period. In 
addition, the 2015 NSR SIP Revision includes amended versions of 9VAC5-
80 sections 1865E and 2144E and 9VAC5-85-55 to allow for the use of 
different 24-month periods for different regulated NSR pollutants when 
establishing PALs, consistent with the discussion in Section II.A of 
this notice. Because these amended regulations for PAL effective period 
and baseline calculations are now consistent with federal requirements 
for PALs in 40 CFR 51.165 and 51.166, EPA finds these amended 
provisions approvable for the Virginia SIP.
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    \1\ A PAL is a voluntary permit option that provides the ability 
to manage facility-wide emissions without triggering major NSR 
review. The flexibility provided under a PAL facilitates the ability 
to respond rapidly to changing market conditions while enhancing the 
environmental protection afforded under the program. If facility 
emissions remain below a plantwide actual emissions cap (that is, an 
actuals PAL), then a facility can avoid major NSR permitting process 
when making alterations to the facility or individual emissions 
units that would otherwise trigger NSR permitting. In return for 
this flexibility, facilities must monitor emissions from all 
emissions units under the PAL in addition to other recordkeeping and 
reporting requirements.
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C. Replacement Units

    Finally, the 2015 NSR SIP Revision submittal adds definitions of 
``replacement unit,'' and amends the definitions of ``emissions unit,'' 
under 9VAC5-80 sections 1615C and 2010C and 9VAC5-85 section 50. The 
effect of these revisions is to allow replacement units to be treated 
as existing units when calculating pre- and post-change emissions for 
purposes of determining NSR applicability. VADEQ's definitions of 
``replacement unit'' are consistent with their federal counterparts at 
40 CFR 51.165(a)(1)(xxi) and 51.166(b)(32). VADEQ's amended definitions 
of ``emissions unit'' are now consistent with their federal 
counterparts at 40 CFR 51.165(a)(1)(vii) and 51.166(b)(7), as is 
VADEQ's approach to calculating pre- and post-change emissions for 
replacement units. Thus, EPA finds these new and amended provisions in 
the 2015 NSR SIP Revision approvable.
    EPA finds the revisions to 9VAC5-80 sections 1615, 1865, 2010, and 
2144 and 9 VAC5-85 sections 50 and 55 (including the changes discussed 
herein as well as the minor administrative changes for grammatical and 
numbering consistency) consistent with CAA section 110(l). None of the 
revisions interfere with any applicable requirement concerning 
attainment of any NAAQS nor interfere with reasonable further progress 
or any other applicable requirement of the CAA. As

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described in this rulemaking, the revisions to the Virginia Code in the 
2015 NSR SIP Revision are consistent with federal requirements for PSD 
and NSR in 40 CFR 51.165 and 51.166. Because the revisions are 
consistent with federal requirements for PSD and NSR permitting 
programs which permit construction and modifications in accordance with 
permitting and emission limitation requirements and address definitions 
for BAE and PAL effective periods, EPA does not expect any interference 
with the NAAQS from these revisions.

III. Proposed Action

    EPA's review of VADEQ's 2015 NSR SIP Revision submittal indicates 
that it is consistent with the CAA and all of its implementing 
regulations. Therefore, EPA is proposing to approve the October 16, 
2015 submittal, as amended on March 1, 2017, as a revision to the 
Virginia SIP. EPA is soliciting public comments on the issues discussed 
in this document. These comments will be considered before taking final 
action.

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

V. Incorporation by Reference

    In this proposed rule, EPA is proposing to include in a final EPA 
rule regulatory text that includes incorporation by reference. In 
accordance with requirements of 1 CFR 51.5, EPA is proposing to 
incorporate by reference the VADEQ regulations regarding definition and 
permitting requirements discussed in Section II of this notice. EPA has 
made, and will continue to make, these materials generally available 
through http://www.regulations.gov and/or at the EPA Region III Office 
(please contact the person identified in the ``For Further Information 
Contact'' section of this preamble for more information).

VI. Statutory and Executive Order Reviews

    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 proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     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

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     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).
    The SIP is not approved to apply on any Indian reservation land as 
defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian 
tribe has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the rule, pertaining to Virginia's preconstruction 
permitting requirements does not have tribal implications and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

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

    Dated: March 21, 2017.
Cecil Rodrigues,
Acting Regional Administrator, Region III.
[FR Doc. 2017-07820 Filed 4-17-17; 8:45 am]
 BILLING CODE 6560-50-P


