[Federal Register Volume 76, Number 99 (Monday, May 23, 2011)]
[Proposed Rules]
[Pages 29686-29688]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-12515]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2010-0856; FRL-9308-2]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Permits for Major Stationary Sources and Major Modifications
Locating in Prevention of Significant Deterioration (PSD) Areas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP)
revision submitted by the Virginia Department of Environmental Quality
(VADEQ). This revision pertains to EPA's proposal to approve the
addition of nitrogen oxides (NOX) as a precursor to ozone in
the Virginia SIP that governs permits for constructing or significantly
modifying facilities located in areas attaining the national ambient
air quality standards (NAAQS). This action is being taken under the
Clean Air Act (CAA).
DATES: Written comments must be received on or before June 22, 2011.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2010-0856 by one of the following methods:
A. http://www.regulations.gov. Follow the on-line instructions for
submitting comments.
B. E-mail: [email protected].
C. Mail: EPA-R03-OAR-2010-0856, Kathleen Cox, Associate Director,
Office of Permits and Air Toxics, Mailcode 3AP10, U.S. Environmental
Protection Agency, Region III, 1650 Arch Street, Philadelphia,
Pennsylvania 19103.
D. Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2010-0856. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the electronic docket are listed in the
http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., 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 in http://www.regulations.gov or in hard copy 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
Virginia submittal are available at the VADEQ Office, 629 East Main
Street, Richmond, Virginia 23219.
FOR FURTHER INFORMATION CONTACT: Sharon McCauley, (215) 814-3376, or by
e-mail at [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. On June 7, 2010, the VADEQ
submitted a revision to the Virginia SIP for including NOX
as a precursor to ozone for permits of major stationary
[[Page 29687]]
sources or major modifications locating in areas in Virginia that are
attaining the NAAQS, also known as Prevention of Significant
Deterioration (PSD) areas.
I. Background
We are proposing approval of Virginia's SIP submission dated June
7, 2010 which addresses regulatory changes needed to be equivalent to
the CAA's part C PSD permit program. This SIP submission also corrects
deficiencies identified by EPA in the March 27, 2008 Federal Register
action entitled, ``Completeness Findings for Section 110(a) State
implementation Plans for the 8-hour ozone National Ambient Air Quality
Standards (1997 Ozone NAAQS)'' (73 FR 16205). EPA's proposed approval
of this SIP submission addresses Virginia's compliance with the portion
of CAA Section 110(a)(2)(C) & (J) relating to the CAA's part C PSD
permit program for the 1997 Ozone NAAQS, because this proposed approval
would approve regulating NOX as a precursor to ozone in
Virginia's SIP in accordance with the Federal Register action dated
November 29, 2005 (70 FR 71612) that finalized NOX as a
precursor for ozone regulations set forth at 40 CFR 51.166 and in 40
CFR 52.21.
II. Summary of SIP Revision
VADEQ's regulations adding NOX as a precursor to ozone
establish a construction permit program consistent with the Federal
CAA's Title I program and implementing regulations at 40 CFR 51.166,
``Prevention of Significant Deterioration of Air Quality.'' VADEQ's
regulation 9VAC5 Chapter 80, Article 8 is part of the SIP and sets
forth the criteria and procedures for major stationary sources to
obtain a permit to construct, operate and/or modify a major stationary
source.
We are proposing to fully approve the regulatory citation changes
which became effective in Virginia on December 31, 2008, as referenced
here in this document and in the Virginia Code of Regulations 9VAC5
Chapter 80, Article 8, sections 5-80-1615 and 5-80-1695 which establish
NOX as a precursor to ozone, into the Virginia SIP. These
proposed changes will add NOX as a precursor to ozone, in
addition to volatile organic compounds (VOC), in the definitions of
``major modification'', ``major stationary source'', ``regulated New
Source Review (NSR) pollutant'' and ``significant'' and to the list of
exempted facilities.
Previously, EPA had issued an ``limited approval'' of Virginia's
PSD regulations (9VAC5 Chapter 80, Article 8) for reasons that will not
deny this action as being fully approved. The ``limited approval''
issues can be found in the Technical Support Document contained in this
Docket or in the Federal Register action dated October 22, 2008 (73 FR
62897).
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 (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
``regarding 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 to
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. Proposed Action
Our review of Virginia's SIP revision request indicates that our
proposed approval of this SIP revision is warranted. As previously
noted, these changes to the Virginia program are found in the Virginia
Code at 9VAC5 Chapter 80, Article 8, Permits for Major Stationary
Sources and Major Modifications Locating in Prevention of Significant
Deterioration Areas.
This proposed SIP approval for sections 5-80-1615 and 5-80-1695
which addresses regulatory changes needed to be equivalent to the CAA's
part C PSD permit program. It will also correct deficiencies identified
by EPA in the March 27, 2008 Federal Register action entitled,
``Completeness Findings for Section 110(a) State implementation Plans
for the 8-hour Ozone National Ambient Air Quality Standards (1997 Ozone
NAAQS)'' (73 FR 16205). EPA's proposed approval of this SIP
[[Page 29688]]
submission addresses Virginia's compliance with the portion of CAA
Section 110(a)(2)(C) & (J) relating to the CAA's part C PSD permit
program for the 1997 Ozone NAAQS, because this proposed approval would
approve regulating NOX as a precursor to ozone in Virginia's
SIP in accordance with the Federal Register action dated November 29,
2005 (70 FR 71612) that finalized NOX as a precursor for
ozone regulations set forth at 40 CFR 51.166 and in 40 CFR 52.21.
We are proposing to fully approve the Virginia SIP revision request
for these changes only. Prior ``limited approval'' of certain aspects
of Virginia's PSD program elements remain valid. A description of these
items for ``limited approval'' can be found in the Technical Support
Document contained in this Docket or in the Federal Register action
dated October 22, 2008 (73 FR 62897). EPA is soliciting public comments
on the issues discussed for this proposed approval document only. These
comments will be considered before taking final action.
V. 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 proposes to approve 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 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 proposed rule to include NOX as a
precursor to ozone in Virginia 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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: April 25, 2011.
James W. Newson,
Acting Regional Administrator, Region III.
[FR Doc. 2011-12515 Filed 5-20-11; 8:45 am]
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