[Federal Register Volume 81, Number 39 (Monday, February 29, 2016)]
[Rules and Regulations]
[Pages 10088-10091]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-04245]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2016-0006; FRL-9942-90-Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Prevention of Significant Deterioration; Fine Particulate
Matter
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking direct
final action to approve revisions to the Commonwealth of Virginia State
Implementation Plan (SIP) submitted by the Virginia Department of
Environmental Quality (VADEQ) on behalf of the Commonwealth on July 22,
2014. VADEQ's submittal revises Virginia's Prevention of Significant
Deterioration (PSD) air quality preconstruction permitting program to
be consistent with the federal PSD regulations regarding the use of the
significant monitoring concentration (SMC) and significant impact
levels (SILs) for fine particulate matter (PM2.5) emissions.
EPA is approving these revisions in accordance with the requirements of
the Clean Air Act (CAA).
DATES: This rule is effective on April 29, 2016 without further notice,
unless EPA receives adverse written comment by March 30, 2016. If EPA
receives such comments, it will publish a timely withdrawal of the
direct final rule in the Federal Register and inform the public that
the rule will not take effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2016-0006 at http://www.regulations.gov, or via email to
[email protected]. 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, the 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. The 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: Himanshu Vyas, (215) 814-2112, or by
email at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
The CAA at section 110(a)(2)(C) requires states to develop and
submit to the EPA for approval into the SIP preconstruction review and
permitting programs applicable to certain new and modified stationary
sources of air pollutants for attainment and nonattainment areas that
cover both major and minor new sources and modifications, collectively
referred to as the New Source Review (NSR) SIP. The CAA NSR SIP program
is composed of three separate programs: PSD, Nonattainment New Source
Review (NNSR), and Minor NSR. PSD is established in part C of title I
of the CAA and applies in areas that meet the National Ambient Air
Quality Standards (NAAQS)--``attainment areas,'' as well as areas where
there is insufficient information to determine if the area meets the
NAAQS--``unclassifiable areas.'' The NNSR SIP program is established in
part D of title I of the CAA and applies in areas that are not in
attainment of the NAAQS--``nonattainment areas.'' The Minor NSR SIP
program addresses construction or modification activities that do not
emit, or have the potential to emit, beyond certain major source
thresholds, and thus do not qualify as ``major'' and applies regardless
of the designation of the area in which a source is located. The EPA
regulations governing the criteria that states must satisfy for EPA
approval of the NSR programs as part of the SIP are contained in 40 CFR
51.160-51.166.
On October 20, 2010, EPA promulgated revisions to the existing
[[Page 10089]]
requirements of the federal PSD permitting program as it pertains to
emissions of PM2.5.\1\ As relevant here for this rulemaking,
those revisions included two screening tools which outlined the extent
to which certain sources were required as part of a permit application
to demonstrate the impact of the proposed project on ambient air
quality. A SMC was established to determine whether a PSD permit
application may be exempted from the 1-year air monitoring requirement
for PM2.5 based on the grounds that the increase of the
pollutant is de minimis and would have a limited impact on ambient air
quality. Additionally, SILs were established, below which a source was
presumed to have met its statutory obligation to demonstrate that the
proposed project would not cause or contribute to a violation of the
NAAQS. In response to a request from EPA and a petition from a third
party, the United States Court of Appeals for the District of Columbia
Circuit (the Court) subsequently vacated and remanded to the EPA the
portions of the 2010 PSD regulations establishing the PM2.5
SMC and SILs. Sierra Club v. EPA, 705 F.3d 458, 463-64 (D.C. Cir.
2013). As a result of this decision, EPA subsequently revised its
regulations to amend the SMC for PM2.5 and to remove the
SILs for PM2.5 altogether. See 78 FR 73698 (December 9,
2013).\2\
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\1\ See ``Prevention of Significant Deterioration (PSD) for
Particulate Matter less than 2.5 Micrometers (PM2.5)--
Increments, Significant Impact Levels (SILs) and Significant
Monitoring Concentration (SMC).'' 75 FR 64864 (October 20, 2010).
\2\ Rather than remove the PM2.5 SMC in its entirety,
EPA revised the value to zero micrograms per cubic meter ([micro]g/
m\3\) in order to be clear that there is no air quality impact level
below which a permitting authority has the discretion to exempt a
source from PM2.5 monitoring requirements. See 78 FR at
73699.
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Prior to the Court's decision, on August 25, 2011, VADEQ submitted
a formal revision to its SIP to incorporate changes to its
PM2.5 regulations in accordance with the federal PSD program
in effect at that time. In light of the Court's decision, by letter
dated February 13, 2013, Virginia officially withdrew from the August
25, 2011 submittal those portions of the Virginia Administrative Code
(VAC) which pertained to the PM2.5 SILs and SMC.
Specifically, Virginia withdrew the PM2.5 SIL regulation at
paragraph A(2) of 9VAC5-80-1715 and the portion of paragraph E(1) of
9VAC5-80-1695 pertaining to the PM2.5 SMC. On February 25,
2014, EPA approved the remaining portions of VADEQ's submittal without
addressing the PM2.5 SMC and SILs. See 79 FR 10377. Virginia
subsequently revised the VAC to comport with EPA's December 9, 2013
rulemaking for SILs and SMC and submitted those amended regulations to
EPA as a formal SIP revision on July 22, 2014.
II. Summary of SIP Revision
Virginia's July 22, 2014 SIP submittal consists of revisions to
Virginia's PSD permitting regulations at 9VAC5-80, sections 1695 and
1715 to reflect federal requirements relating to PM2.5 SMC
and SILs. Specifically, 9VAC5-80-1695E(1) establishes a SMC of 0
[micro]g/m\3\ of PM2.5, and expressly states that no
exemption from monitoring is available with regard to PM2.5.
As previously discussed, VADEQ's PM2.5 SILs provision,
formerly codified at 9VAC5-80-1715A(2) was never approved by EPA into
Virginia's SIP and was subsequently removed by Virginia from the VAC.
Therefore, this approval action does not include a substantive revision
to 9VAC5-80-1715A. Rather, EPA's action involves approval of Virginia's
administrative recodification, necessitated by the Commonwealth's
revision of state regulations (i.e., the removal of the SILs from
9VAC5-80-1715). The Virginia regulations, 9VAC5-80, sections 1695 and
1715, are consistent with federal PSD requirements for PM2.5
in the CAA and its implementing regulations, including specifically 40
CFR 51.166, and were effective in Virginia on June 4, 2014.
III. Final Action
EPA is approving VADEQ's July 22, 2014 SIP submittal, including
revised provisions of the VAC, 9VAC5-80, sections 1695 and 1715, as a
revision to the Virginia SIP because the revision meets CAA
requirements in the CAA and its implementing regulations. EPA is
publishing this rule without prior proposal because EPA views this as a
noncontroversial amendment and anticipates no adverse comment. However,
in the ``Proposed Rules'' section of this Federal Register, EPA is
publishing a separate document that will serve as the proposal to
approve the SIP revision if adverse comments are filed. This rule will
be effective on April 29, 2016 without further notice unless EPA
receives adverse comment by March 30, 2016. If EPA receives adverse
comment, EPA will publish a timely withdrawal in the Federal Register
informing the public that the rule will not take effect. EPA will
address all public comments in a subsequent final rule based on the
proposed rule. EPA will not institute a second comment period on this
action. Any parties interested in commenting must do so at this time.
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.
[[Page 10090]]
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.
V. Incorporation by Reference
In this rulemaking action, the 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 VADEQ rules regarding PM2.5 SILs and SMC
discussed in Section III of this preamble. The EPA has made, and will
continue to make, these documents generally available electronically
through www.regulations.gov and/or may be viewed at the appropriate EPA
office (see the ADDRESSES section of this preamble for more
information).
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 April 29, 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. Parties with objections to this direct final rule are
encouraged to file a comment in response to the parallel notice of
proposed rulemaking for this action published in the proposed rules
section of this Federal Register, rather than file an immediate
petition for judicial review of this direct final rule, so that EPA can
withdraw this direct final rule and address the comment in the proposed
rulemaking action.
This action pertaining to Virginia's PSD requirements for
PM2.5 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, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: February 12, 2016.
Shawn M. Garvin,
Regional Administrator, Region III.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
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1. The authority citation for part 52 continues to read as follows:
[[Page 10091]]
Authority: 42 U.S.C. 7401 et seq.
Subpart VV--Virginia
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2. In Sec. 52.2420, the table in paragraph (c) is amended by revising
the entries under Chapter 80 for Sections 5-80-1695 and 5-80-1715 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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State
State citation Title/Subject effective EPA Approval date Explanation [former
date SIP citation]
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9 VAC 5, Chapter 80 Permits for Stationary Sources [Part VIII]
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Article 8 Permits--Major Stationary Sources and Major Modifications Located in Prevention of Significant
Deterioration Areas
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5-80-1695...................... Exemptions........ 6/4/14 2/29/16 [Insert Revised paragraph E(1)
Federal Register to add value for
Citation]. PM2.5. Limited
approval remains in
effect.
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5-80-1715...................... Source impact 6/4/14 2/29/16 [Insert Revised paragraph A.
analysis. Federal Register Limited approval
Citation]. remains in effect.
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[FR Doc. 2016-04245 Filed 2-26-16; 8:45 am]
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