[Federal Register Volume 80, Number 225 (Monday, November 23, 2015)]
[Rules and Regulations]
[Pages 72903-72906]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-29680]
[[Page 72903]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2015-0274; FRL-9937-25-Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Prevention of Significant Deterioration; Plantwide
Applicability Limits for Greenhouse Gases
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving a May
12, 2014 State Implementation Plan (SIP) revision submitted for the
Commonwealth of Virginia by the Virginia Department of Environmental
Quality (VADEQ). This revision adds Plantwide Applicability Limit (PAL)
provisions for Greenhouse Gases (GHGs) to Virginia's Prevention of
Significant Deterioration (PSD) program. This action is being taken
under the Clean Air Act (CAA).
DATES: This final rule is effective on December 23, 2015.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2015-0274. 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 electronically through www.regulations.gov or may be viewed
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.
SUPPLEMENTARY INFORMATION:
I. Background
On June 5, 2015 (80 FR 32078), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Virginia. In the NPR, EPA
proposed approval of Virginia's May 12, 2014 SIP submittal. The
revision incorporates PAL provisions for GHGs into Virginia's PSD
program.
In a June 3, 2010 final rulemaking action, EPA promulgated
regulations known as ``the Tailoring Rule,'' which phased in permitting
requirements for GHG emissions from stationary sources under the CAA
PSD and title V permitting programs. See 75 FR 31514. For Step 1 of the
Tailoring Rule, which began on January 2, 2011, PSD or title V
requirements applied to sources of GHG emissions only if the sources
were subject to PSD or title V ``anyway'' due to their emissions of
non-GHG pollutants. These sources are referred to as ``anyway
sources.'' Step 2 of the Tailoring Rule, which began on July 1, 2011,
applied the PSD and title V permitting requirements under the CAA to
sources that were classified as major, and, thus, required to obtain a
permit, based solely on their potential GHG emissions and to
modifications of otherwise major sources that required a PSD permit
because they increased only GHGs above applicable levels in the EPA
regulations. Subsequently, on May 13, 2011, EPA took final action to
approve a revision to Virginia's PSD SIP, incorporating preconstruction
permitting requirements for major stationary sources and major
modifications of GHGs, consistent with the Federal PSD requirements at
the time. See 76 FR 27898.
In a June 12, 2012 final rulemaking action entitled ``Prevention of
Significant Deterioration and Title V Greenhouse Gas Tailoring Rule
Step 3 and GHG Plantwide Applicability Limits'' \1\ (hereafter,
Tailoring Rule Step 3), EPA promulgated a number of streamlining
measures intended to improve the administration of GHG PSD permitting
programs. Included in that rulemaking were provisions to allow sources
to obtain GHG PALs on a carbon dioxide equivalent (CO2e) \2\
basis, rather than strictly on a mass basis. A PAL is an emissions
limitation for a single pollutant expressed in tons per year (tpy) that
is enforceable as a practical matter and is established source-wide in
accordance with specific criteria. See 40 CFR 52.21(aa)(2)(v). PALs
offer an alternative method for determining major New Source Review
(NSR) applicability: If a source can maintain its overall emissions of
the PAL pollutant below the PAL level, the source can make a change
without triggering PSD review. Virginia's May 12, 2014 submittal
incorporates PAL provisions into Virginia's PSD program, consistent
with EPA's Tailoring Rule Step 3.
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\1\ See 77 FR 41051.
\2\ CO2e is defined as the mass of the specific GHG
(in tons), multiplied by its Global Warming Potential, as codified
in 40 CFR part 98.
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On June 23, 2014, the United States Supreme Court, in Utility Air
Regulatory Group v. Environmental Protection Agency,\3\ issued a
decision addressing the Tailoring Rule and the application of PSD
permitting requirements to GHG emissions. The Supreme Court said that
the EPA may not treat GHGs as an air pollutant for purposes of
determining whether a source is a major source required to obtain a PSD
permit. The Court also said that the EPA could continue to require that
PSD permits, otherwise required based on emissions of pollutants other
than GHGs, contain limitations on GHG emissions based on the
application of Best Available Control Technology (BACT). The Supreme
Court decision effectively upheld PSD permitting requirements for GHG
emissions under Step 1 of the Tailoring Rule for ``anyway sources'' and
invalidated PSD permitting requirements for Step 2 sources.
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\3\ See 134 S.Ct. 2427.
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In accordance with the Supreme Court decision, on April 10, 2015,
the U.S. Court of Appeals for the District of Columbia Circuit (D.C.
Circuit) issued an amended judgment vacating the regulations that
implemented Step 2 of the Tailoring Rule, but not the regulations that
implement Step 1 of the Tailoring Rule.\4\ The amended judgment
preserves, without the need for additional rulemaking by the EPA, the
application of the BACT requirement to GHG emissions from sources that
are required to obtain a PSD permit based on emissions of pollutants
other than GHGs (i.e., the ``anyway'' sources). The D.C. Circuit's
judgment vacated the regulations at issue in the litigation, including
40 CFR 51.166(b)(48)(v), ``to the extent they require a stationary
source to obtain a PSD permit if greenhouse gases are the only
pollutant (i) that the source emits or has the potential to emit above
the applicable major source thresholds, or (ii) for which there is a
significant emissions increase from a modification.'' \5\
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\4\ Coalition for Responsible Regulation v. EPA, D.C. Cir., No.
09-1322, 06/26/20, judgment entered for No. 09-1322 on 04/10/2015.
\5\ Id.
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EPA may need to take additional steps to revise federal PSD rules
in light of the Supreme Court decision and recent D.C. Circuit
judgment. In addition, EPA anticipates that many states will revise
their existing SIP-approved PSD programs. EPA is not expecting states
to have revised their existing PSD program
[[Page 72904]]
regulations at this juncture. However, EPA is evaluating PSD program
submissions to assure that the state's program correctly addresses GHGs
consistent with both decisions.
Virginia's currently approved PSD SIP continues to require that PSD
permits (otherwise required based on emissions of pollutants other than
GHGs) contain limitations on GHG emissions based on the application of
BACT when sources emit or increase GHGs in the amount of 75,000 tpy,
measured as CO2e. Although Virginia's SIP may also currently
contain provisions that are no longer necessary in light of the D.C.
Circuit's judgment or the Supreme Court decision, this does not prevent
EPA from approving the submission addressed in this rule. This
rulemaking action does not add any GHG permitting requirements that are
inconsistent with either decision.
Likewise, the GHG PAL provisions being approved in this action
include some provisions that may no longer be appropriate in light of
both the D.C. Circuit judgment and the Supreme Court decision. Since
the Supreme Court has determined that sources and modifications may not
be defined as ``major'' solely on the basis of the level of GHGs
emitted or increased, PALs for GHGs may no longer have value in some
situations where a source might have triggered PSD based on GHG
emissions alone. However, PALs for GHGs may still have a role to play
in determining whether a modification that triggers PSD for a pollutant
other than GHGs should also be subject to BACT for GHGs. These
provisions, like the other GHG provisions discussed previously, may be
revised at some future time. However, these provisions do not add new
requirements for sources or modifications that only emit or increase
GHGs above the major source threshold or the 75,000 tpy GHG level in 40
CFR 52.21(b)(49)(iv). Rather, the PAL provisions provide increased
flexibility to sources that wish to address their GHG emissions in a
PAL. Since this flexibility may still be valuable to sources in at
least one context described above, EPA is approving these provisions as
a revision to the Virginia SIP at this juncture.
II. Summary of SIP Revision
The revision includes amendments to 9VAC5-85: ``Permits for
Stationary Sources of Pollutants Subject to Regulation.'' Specifically,
9VAC5-85-40: ``Prevention of Significant Deterioration Area Permit
Actions,'' and 9VAC5-85-50: ``Definitions'' are being amended.
Additionally, 9VAC5-85-55: ``Actual plantwide applicability limits,''
is being added to the SIP. The amendments are consistent with the GHG
PAL provisions of 40 CFR 52.21 as promulgated by EPA on July 12, 2012.
See 77 FR 41072-41075. These provisions were effective in Virginia on
March 13, 2014. Other specific requirements of the May 12, 2014 SIP
submittal and the rationale for EPA's approval are explained in the NPR
and will not be restated here. No comments were received on the NPR.
III. Final Action
EPA is approving VADEQ's May 12, 2014 SIP submittal as a revision
to the Virginia SIP.
IV. Incorporation by Reference
In this rulemaking action, EPA is finalizing regulatory text that
includes incorporation by reference. In accordance with requirements of
1 CFR 51.5, the EPA is finalizing the incorporation by reference of the
VADEQ rules regarding GHG PALs discussed in section II of this
preamble. EPA has made, and will continue to make, these documents
generally available electronically through www.regulations.gov, or they
may be viewed at the appropriate EPA office (see the ADDRESSES section
of this preamble for more information).
V. 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
[[Page 72905]]
any, state audit privilege or immunity law.
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).
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 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).
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 January 22, 2016. 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 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 28, 2015.
Shawn M. Garvin,
Regional Administrator, Region III.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for 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 entries under Chapter 85 for Sections 5-85-40 and 5-85-50 and
adding an entry for Section 5-85-55 to read as follows:
Sec. 52.2420 Identification of plan.
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(c) * * *
EPA-Approved Virginia Regulations and Statutes
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Explanation
State citation Title/subject State EPA approval date [former SIP
effective date citation]
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9 VAC 5, Chapter 85 Permits for Stationary Sources of Pollutants Subject to Regulation
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Part III Prevention of Significant Deterioration Permit Actions
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5-85-40........................ Prevention of 03/13/14 11/23/15 [Insert
Significant Federal Register
Deterioration Area citation].
Permit Actions.
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5-85-50........................ Definitions............ 03/13/14 11/23/15 [Insert
Federal Register
citation].
5-85-55........................ Actual plantwide 03/13/14 11/23/15 [Insert Added.
applicability limits Federal Register
(PALs). citation].
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[FR Doc. 2015-29680 Filed 11-20-15; 8:45 am]
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