[Federal Register Volume 79, Number 37 (Tuesday, February 25, 2014)]
[Rules and Regulations]
[Pages 10377-10385]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-03640]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2011-0927; FRL-9906-67-Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Prevention of Significant Deterioration and Nonattainment New
Source Review; Fine Particulate Matter (PM2.5)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving
revisions to the Virginia State Implementation Plan (SIP), submitted by
the Virginia Department of Environmental Quality (VADEQ) on August 25,
2011. The revisions pertaining to Virginia's Prevention of Significant
Deterioration (PSD) program are being fully approved. EPA is granting
limited approval to the revisions pertaining to Virginia's
nonattainment New Source Review (NSR) program. In both cases, the
revisions incorporate preconstruction permitting regulations for fine
particulate matter (PM2.5) into the Virginia SIP. In
addition, EPA is approving these revisions and portions of other
related submissions for the purpose of determining that Virginia has
met its statutory obligations with respect to the infrastructure
requirements of the Clean Air Act (CAA) which relate to Virginia's PSD
permitting program and are necessary to implement, maintain, and
enforce the 1997 8-hour ozone and PM2.5 National Ambient Air
Quality Standards (NAAQS), the 2006 PM2.5 NAAQS, and the
2008 lead NAAQS. EPA is approving these revisions in accordance with
the requirements of the CAA. A previous PSD program approval of
Virginia's Chapter 80, Article 8 regulations was provided to the
Commonwealth as a ``limited approval'' for reasons that do not impact
the
[[Page 10378]]
approval of the August 25, 2011 submission. A correction related to
that prior limited approved is also included in this action.
DATES: This final rule is effective on March 27, 2014.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2011-0927. 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 [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On August 1, 2012 (77 FR 45523), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Virginia. In the NPR, EPA
proposed approval of amendments to Virginia's major NSR permitting
regulations under the Virginia Administrative Code (VAC) to incorporate
requirements for PM2.5. Additionally, EPA proposed to
approve these revisions and portions of other related submissions for
the purpose of determining that Virginia has met its statutory
obligations with respect to the infrastructure requirements of CAA
section 110(a) which relate to Virginia's PSD permitting program and
are necessary to implement, maintain, and enforce the 1997 8-hour ozone
and PM2.5 NAAQS, the 2006 PM2.5 NAAQS, and the
2008 lead NAAQS. The formal SIP revision request was submitted by
Virginia on August 25, 2011.
II. Summary of SIP Revision
Virginia's August 25, 2011 SIP submittal included revisions to the
general definitions under Chapter 10 of 9VAC5 (specifically 9VAC5-10-
30), as well as revisions to Articles 8 (PSD) and 9 (nonattainment NSR)
under Chapter 80 of 9VAC5. The following regulations under Article 8
are revised: 9VAC5-80-1615 (Definitions); 9VAC5-80-1635 (Ambient Air
Increments); 9VAC5-80-1695 (Exemptions); 9VAC5-80-1715 (Source Impact
Analysis); and 9VAC5-80-1765 (Sources Affecting Federal Class I Areas--
Additional Requirements). Under Article 9, the regulations at 9VAC5-80-
2010 (Definitions) and 9VAC5-80-2120 (Offsets) are amended.
As discussed in the NPR, in light of litigation EPA proposed to
take no action with regard to the Significant Impact Level (SIL)
regulation at paragraph A(2) of 9VAC5-80-1715 (See, 77 FR 45523). On
January 22, 2013, the U.S. Court of Appeals for the District of
Columbia Circuit (D.C. Circuit) in Sierra Club v. EPA (705 F.3d 458,
469), issued a judgment that, inter alia, vacated and remanded the
provisions at 40 CFR 51.166(k)(2), which were promulgated as part of
the October 20, 2010 ``Prevention of Significant Deterioration for
Particulate Matter Less than 2.5 Micrometers (PM2.5)--
Increments, Significant Impact Levels (SILs) and Significant Monitoring
Concentrations (SMC),'' (2010 PSD PM2.5 Rule).\1\ These
provisions were the Federal counterparts to Virginia's PM2.5
SIL regulations at paragraph A(2) of 9VAC5-80-1715. Additionally, the
court vacated the provisions at section 51.166(i)(5)(i)(c), which were
the Federal counterparts to Virginia's PM2.5 SMC regulations
at paragraph E(1) of 9VAC5-80-1695 (See, Sierra Club v. EPA, 705 F.3d
at 469). EPA proposed approval of Virginia's PM2.5 SMC
provisions in our NPR. In light of the court's decision, by letter
dated February 13, 2013, Virginia officially withdrew from the August
25, 2011 submittal 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. Accordingly, EPA is not
finalizing approval of these provisions. Therefore, EPA's approval with
respect to sections 5-80-1695 and 5-80-1715 is limited to the remaining
revisions which were not impacted by the court decision.
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\1\ See 75 FR 64864 (October 12, 2010).
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Subsequent to publication of the NPR, on January 4, 2013, the D.C.
Circuit, in Natural Resources Defense Council v. EPA,\2\ issued a
decision that remanded the EPA's 2007 and 2008 rules implementing the
1997 PM2.5 NAAQS. The court's remand of EPA's 2008
implementation rule, ``Implementation of New Source Review (NSR)
Program for Particulate Matter Less Than 2.5 Micrometers
(PM2.5)'' (referred to herein as ``the 2008 NSR
PM2.5 Rule''),\3\ is relevant to this final rulemaking. This
rule promulgated NSR requirements for implementation of
PM2.5 in both nonattainment areas (nonattainment NSR) and
attainment/unclassifiable areas (PSD). The court found that EPA erred
in implementing the PM2.5 NAAQS pursuant to the general
implementation provisions of subpart 1 of part D of title I of the CAA,
rather than pursuant to the additional implementation provisions
specific to particulate matter nonattainment areas in subpart 4. The
court ordered the EPA to ``repromulgate these rules pursuant to Subpart
4 consistent with this opinion,'' (Id. at 437). Although the court
declined to establish a deadline for EPA's response to the remand, EPA
intends to promulgate new generally applicable implementation
regulations for the PM2.5 NAAQS in accordance with the
requirements of subpart 4. In the interim, however, states and EPA
still need to proceed with implementation of the PM2.5 NAAQS
in a timely and effective fashion in order to meet statutory
obligations under the CAA and to assure the protection of public health
intended by those NAAQS.
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\2\ See 706 F.3d 428 (D.C. Cir. 2013).
\3\ See 73 FR 28321 (May 16, 2008).
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As discussed in the NPR, VADEQ's August 25, 2011 SIP submittal
included revisions to Virginia's nonattainment NSR program consistent
with the provisions promulgated in the 2008 NSR PM2.5 Rule.
Specifically, under Article 9, the state submitted amendments to the
regulations at 9VAC5-80-2010 (Definitions) and 9VAC5-80-2120 (Offsets)
for approval into the SIP, including the PM2.5 significant
emission rates (SERs), regulation of certain PM2.5
precursors (SO2 and NOX), the regulation of
PM10 and PM2.5 condensable emissions, and the
emissions offset requirements. In light of the D.C. Circuit's remand of
the 2008 NSR PM2.5 Rule and for the reasons explained below,
EPA is not prepared at this time to grant full approval to VADEQ's
August 25, 2011 submittal as to these elements.
EPA is in the process of evaluating the requirements of subpart 4
as they pertain to nonattainment NSR. In particular, subpart 4 includes
section 189(e) of the CAA, which requires the control of major
stationary sources of PM10 precursors (and hence under the
court decision, PM2.5 precursors) ``except where the
Administrator determines that such sources do not contribute
significantly to PM10 levels which exceed the standard in
the area.''
[[Page 10379]]
The evaluation of which precursors need to be controlled to achieve the
standard in a particular area is typically conducted in the context of
the state's preparing and the EPA's reviewing of an area's attainment
plan SIP. In this case, there is only one designated PM2.5
nonattainment area in the State, the Virginia portion of the
Washington, DC-MD-VA nonattainment area for the 1997 annual
PM2.5 NAAQS. Virginia submitted an attainment plan for this
area on April 4, 2008.
On January 12, 2009, EPA finalized a clean data determination for
the area, (74 FR 1146), which suspended the requirement for the state
to submit, among other things, an attainment plan SIP for the area.
Accordingly, on January 23, 2012, Virginia withdrew the attainment plan
SIP, and it is no longer before EPA. As EPA does not have before it the
state's analysis as to which precursors need to be controlled in the
area as contained in the attainment plan SIP, it cannot fully approve
as complying with the CAA a nonattainment NSR SIP that only addresses a
subset of the scientific PM2.5 precursors recognized by EPA.
On the other hand, while VADEQ's submittal may not yet contain all
of the elements necessary to satisfy the CAA requirements when
evaluated under subpart 4, the revisions represent a considerable
strengthening of Virginia's currently approved nonattainment NSR SIP
which does not address PM2.5 at all. Therefore, EPA is
granting limited approval to the nonattainment NSR provisions in
VADEQ's August 25, 2011 submittal.
For the reasons explained above, EPA is not evaluating at this time
whether Virginia's submittal will require additional revisions to
satisfy the subpart 4 requirements. Once EPA re-promulgates the Federal
PM2.5 regulations with respect to nonattainment NSR
permitting in response to the court's remand, EPA will consider whether
a limited disapproval should also be finalized. Moreover, Virginia has
submitted a request to redesignate the nonattainment area, which, if
granted, would absolve the State of any further obligation to comply
with the subpart 4 requirements for nonattainment NSR as to this area.
Alternatively, VADEQ can obtain full approval by, if necessary,
revising its regulations accordingly to address EPA's revised
regulations and submitting them to EPA as a formal SIP revision.
As previously discussed, VADEQ's August 25, 2011 SIP submittal also
includes revisions to Virginia's PSD program consistent with the
provisions promulgated in the 2008 NSR PM2.5 Rule.
Specifically, under Article 8, the following regulations are revised
(with the previously noted exceptions): 9VAC5-80-1615 (Definitions);
9VAC5-80-1635 (Ambient Air Increments); 9VAC5-80-1695 (Exemptions);
9VAC5-80-1715 (Source Impact Analysis); and, 9VAC5-80-1765 (Sources
Affecting Federal Class I Areas--Additional Requirements). As the
requirements of subpart 4 only pertain to nonattainment areas, it is
EPA's position that the portions of the 2008 NSR PM2.5 Rule
that address requirements for PM2.5 attainment and
unclassifiable areas are not affected by the D.C. Circuit's opinion in
NRDC v. EPA. Moreover, EPA does not anticipate the need to revise any
PSD requirements promulgated in the 2008 NSR PM2.5 Rule in
order to comply with the court's decision. Accordingly, EPA's approval
of Virginia's SIP as to the PSD requirements promulgated by the 2008
NSR PM2.5 Rule does not conflict with the court's opinion.
Similarly, in the NPR, EPA also proposed to approve portions of
related infrastructure (or CAA Section 110(a)(2)) SIP submissions, for
the purpose of determining that Virginia has met its statutory
obligations with respect to the PSD-related infrastructure requirements
of CAA section 110(a) for the 1997 8-hour ozone and PM2.5
NAAQS, the 2006 PM2.5 NAAQS, and the 2008 lead NAAQS.
Virginia submitted the related infrastructure SIP revisions on the
following dates: November 13, 2007, December 13, 2007, July 10, 2008,
September 2, 2008, April 1, 2011, and March 9, 2012. For the reasons
explained above, it is also EPA's position that EPA's approval of the
portions of the above identified Virginia's infrastructure SIPs which
relate to compliance with the PSD requirements set forth in Sections
110(a)(2)(C), (D)(i)(II), and (J) does not conflict with the court's
remand of the 2008 NSR PM2.5 Rule.\4\
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\4\ The court's decision with respect to the nonattainment NSR
requirements promulgated by the 2008 NSR PM2.5 Rule also
does not affect the EPA's proposed approval of the present
infrastructure action. The EPA interprets the Act to exclude
nonattainment area requirements, including requirements associated
with a nonattainment NSR program, from infrastructure SIP
submissions due 3 years after adoption or revision of a NAAQS.
Instead, these elements are typically referred to as nonattainment
SIP or attainment plan elements, which would be due by the dates
statutorily prescribed under subpart 2 through 5 under part D,
extending as far as 10 years following designations for some
elements.
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In addition to the proposed approval of the PSD portions of section
110(a)(2)(D)(i)(II), EPA stated in the NPR that: ``Because Virginia has
met its obligations with respect to the visibility requirements of
section 110(a)(2)(D)(i)(II) by virtue of its regional haze SIP, which
EPA took final action to approve on March 23, 2012 (77 FR 16397), EPA
is also proposing to approve the portions of Virginia's previous
infrastructure submittals related to the visibility requirements of
section 110(a)(2)(D)(i)(II) for the 1997 ozone, 1997 PM2.5,
2006 PM2.5, and 2008 lead NAAQS.''
As discussed in Section III, below, EPA has already taken separate
and final action to approve the portions of these identified SIP
submittals which relate to the section 110(a)(2)(D)(i)(II) visibility
requirements for the 1997 ozone, 1997 PM2.5, 2006
PM2.5, and 2008 lead NAAQS. Therefore, EPA is taking no
action on the proposed approval of the visibility requirements for
these identified SIP submittals.\5\ EPA is only taking final action to
approve the portions of the above identified infrastructure SIPs which
relate to Virginia's PSD program.
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\5\ EPA also notes there was an inadvertent, incorrect citation
to the Virginia regional haze SIP approval in the NPR. The correct
citation to EPA's approval of the Virginia regional haze SIP is 77
FR 35287 (June 13, 2012) (effective July 13, 2012).
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Other specific requirements of Virginia's August 25, 2011 SIP
submittal and the rationale for EPA's proposed action are explained in
the NPR and will not be restated here.
III. EPA's Response to Comments Received on the Proposed Action
EPA received two sets of comments on the August 1, 2012 NPR. A full
set of these comments is provided in the docket for today's final
action. A summary of the comments and EPA's responses are provided
herein.
Comment: The first commenter asserted simply that the Federal
government should not be involved in state affairs.
EPA Response: As Congress has recognized, the regulation of air
pollution in Virginia is not a ``state affair'' for which Virginia
bears sole responsibility. The CAA establishes a partnership between
state and Federal entities for the protection and improvement of the
nation's air quality. Under CAA section 109, EPA is required to
establish National Ambient Air Quality Standards (NAAQS) for the
protection of public health and welfare. Subsequent to the promulgation
(or revision) of a NAAQS, states are required by CAA section 110 to
adopt and submit to EPA for approval, a SIP which provides for the
implementation, maintenance, and enforcement of the NAAQS. Virginia's
August 25, 2011 SIP
[[Page 10380]]
submittal met that requirement. In addition, section 110(a)(2)(C)
specifically requires that state plans include a PSD and nonattainment
NSR permit program as required in parts C and D of Title I of the Clean
Air Act. The action being finalized today consistent with EPA's
responsibilities under CAA section 110.
A second commenter submitted two substantive comments. First, the
commenter raised concerns regarding EPA's determination that Virginia
has met its obligations with respect to the visibility requirements of
section 110(a)(2)(D)(i)(II) by virtue of its regional haze SIP. Second,
the commenter raised several concerns about the legality of SILs and
SMCs, as well as Virginia's adoption of them.
Comment 1: The commenter claimed that Virginia's regional haze SIP
is insufficient to ensure compliance with visibility requirements under
CAA section 110(a)(2)(D)(i)(II). The commenter stated that Virginia's
regional haze SIP only received limited approval due to its reliance on
the Clean Air Interstate Rule (CAIR) for best available retrofit
technology (BART) for electric generating units. The commenter alleged
that EPA cannot rely on Virginia's regional haze SIP for satisfying
section 110(a)(2)(D)(i)(ii) because it did not receive full approval,
because CAIR has been remanded by the D.C. Circuit, and because EPA
provided no explanation for how the regional haze SIP meets the
requirements of section 110(a)(2)(D)(i)(II) as they relate to the 1997
ozone NAAQS, the 1997 and 2006 PM2.5 NAAQS, and the 2008
lead NAAQS. The commenter stated that EPA should either revoke its
approval of the Virginia regional haze SIP or, at a minimum, provide an
explanation for how the regional haze SIP ensures visibility will be
protected for the aforementioned NAAQS.
Response 1: In the NPR for this rulemaking, EPA proposed to approve
the following infrastructure SIP submittals as meeting the
infrastructure requirements of section 110(a)(2)(D)(i)(II) (visibility
protection): The November 13, 2007 Virginia submittal for the 1997 8-
hour ozone and PM2.5 NAAQS; the December 13, 2007 Virginia
submittal for the 1997 8-hour ozone NAAQS; the July 10, 2008 and
September 2, 2008 Virginia submittals for the 1997 p.m.2.5 NAAQS; the
April 1, 2011 Virginia submittal for the 2006 p.m.2.5 NAAQS; and, the
March 9, 2012 Virginia SIP submittal for the 2008 lead NAAQS. The
August 2012 NPR was not the first or the most recent proposed
rulemaking issued by EPA relating to Virginia's compliance with the
visibility requirements set forth in Section 110(a)(2)(D)(i)(II).
On June 13, 2012, EPA issued a final rule granting limited approval
to the Virginia regional haze SIP (See, 77 FR 35287). In that final
rulemaking action, EPA also approved Virginia's regional haze SIP as
satisfying the infrastructure requirements of CAA sections
110(a)(2)(D)(i)(II) and (J), as they relate to the 1997 8-hour ozone
NAAQS and the 1997 and 2006 PM2.5 NAAQS. Subsequently, on
September 24, 2013, when acting upon Virginia's infrastructure SIP for
the 2008 lead NAAQS, EPA approved that SIP as meeting the
infrastructure requirements of sections 110(a)(2)(D)(i)(II) and (J).
(See, 78 FR 58462 (Sept. 24, 2013)). Most recently, EPA has proposed to
approve Virginia's infrastructure SIPs for the 2008 ozone and 2010
NO2 NAAQS as meeting the infrastructure requirements in
sections 110(a)(2)(D)(i)(II) and (J) (See, 78 FR 39651 (July 2, 2013)
(2008 ozone NAAQS) and 78 FR 47264 (August 5, 2013) (2010
NO2 NAAQS)).
Therefore, as part of the August 2012 NPR for this rulemaking, EPA
inadvertently proposed to approve Virginia's previously submitted
infrastructure SIPs as meeting the infrastructure requirements of
section 110(a)(2)(D)(i)(II) for the 1997 8-hour ozone NAAQS, and the
1997 and 2006 PM2.5 NAAQS. Since final action had been taken
for this requirement during June 2012, further action was not required.
As to EPA's approval of Virginia's compliance with the 110(a)(2)
requirements for visibility (set forth in sections 110(a)(2)(D)(i)(II)
and (J)) for the 2008 lead NAAQS, subsequent to the August 2012 NPR,
EPA issued a final rulemaking on such requirements on September 24,
2013. Because EPA has already taken separate proposed and final
rulemaking actions to approve these elements of the Virginia SIP, EPA
is taking no further action on its proposed approval of the visibility
requirements of section 110(a)(2)(D)(i)(II) as they relate to the
aforementioned NAAQS.\6\ Additionally, EPA received and responded to
similar comments as part of some or all of these previous rulemakings.
Therefore, EPA is not responding to the comment that Virginia's
regional haze SIP is insufficient to ensure compliance with visibility
requirements under CAA section 110(a)(2)(D)(i)(II), as we have already
responded to similar comments in our other actions (See, 77 FR 35287;
78 FR 34970; 78 FR 39651; and 78 FR 47263). As a result, EPA sees no
need for further action or response as part of this final rulemaking.
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\6\ EPA also notes there was an inadvertent, incorrect citation
to its approval of the Virginia regional haze SIP in the NPR. The
correct citation to EPA's approval of the Virginia regional haze SIP
is 77 FR 35287 (June 13, 2012) (effective July 13, 2012).
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Comment 2: The same commenter argued that ``Virginia's regulations
establishing SILs and SMCs are illegal under the CAA and should be
disapproved by EPA'' (See, Sierra Club Comments at 4). Here the
commenter took issue with both EPA's establishing SILs and SMCs
generally, and with the PM2.5 SILs proposed by Virginia
specifically. First, citing to the litigation in Sierra Club v. EPA
(D.C. Circuit, No. 10-1413), the commenter asserts that EPA lacks the
authority to establish SILs and SMCs because they improperly allow
sources to avoid otherwise applicable CAA requirements. The commenter
asserted that, therefore, EPA should disapprove those portions of
Virginia's SIP submittal pertaining to the PM2.5 SILs and
SMCs, rather than approving the SMCs and taking no action on the SILs,
as proposed.
Secondly, the commenter asserted that the specific SILs at 9VAC5-
80-1715A and B should be disapproved because they do not provide VADEQ
with sufficient discretion to require a cumulative impact analysis
regardless of whether a source's impact is below the SIL. In addition,
the commenter asserts that the SIL values in paragraphs A(2) and B(1)
of section 5-80-1715 are set at different levels and could lead to
confusion. Moreover, the commenter asserted that the SIL values in
paragraph 5-80-1715B(1) are not sufficiently protective of Class I
areas because, unlike the SIL values in paragraph A, paragraph B does
not distinguish different SIL values based on area classifications.
Finally, the commenter asserts that the thresholds in paragraph 5-80-
1715B(1) are improperly incorporated into Virginia's SIP because they
have as their basis Appendix S of 40 CFR part 51, which applies in
situations where EPA has not approved a state's preconstruction review
program.
EPA Response 2: As previously discussed, in light of the D.C.
Circuit's vacatur of 40 CFR 51.166(k)(2) and (i)(5)(i)(c), Virginia has
officially withdrawn the corresponding state rules with which the
commenter takes issue from the August 25, 2011 SIP submittal. Thus,
there is no need to further consider the commenter's assertion that EPA
should disapprove those provisions in this rulemaking because Virginia
no longer asks that EPA consider them for approval as part of its SIP.
[[Page 10381]]
As to any apparent conflict between the two SIL provisions in
Virginia's SIP submission, paragraph A(2) of 9VAC5-80-1715 has been
withdrawn and thus the commenter's concern regarding any potential for
confusion between the two provisions is addressed by withdrawal of one
provision from the SIP submission.
As to the SILs in paragraph B(1), the commenter is incorrect in the
claim that these SIL values were only intended to apply in states
without an EPA-approved PSD program. While it is true that those SIL
values are published in Appendix S of 40 CFR part 51, they are also
published in section 51.165(b)(2). Section 51.165(b) implements section
110(a)(2)(D)(i) of the CAA and applies to sources or modifications
locating in attainment or unclassifiable areas that would cause or
contribute to a violation of any NAAQS in any area. This is the basis
for their inclusion in Virginia's SIP. These SILs establish the
threshold at or above which a new major stationary source or major
modification will be considered to cause or contribute to a violation
of an ambient air quality standard, and thus subject to the
requirements in 40 CFR 51.165(b). EPA has recognized that the values in
section 51.165(b)(2) may also be used in the PSD program to support the
demonstration required by 40 CFR 51.165(k)(1) and section 165(a)(3) of
the CAA that proposed construction will not cause or contribute to a
violation of the NAAQS. However, contrary to the commenter's assertion,
the Federal regulations set forth at section 51.165(b) do not impede a
permitting authority's discretion to require a cumulative impact
analysis to make the showing required by section 51.166(k)(1) and
section 165(a)(3) of the CAA where the source's impact is below a SIL
value in section 51.165(b). Similarly, the corresponding state
regulation at 9VAC5-80-1715B(1) does not impede the state's permitting
authority discretion. Both provisions address the threshold above which
a source will be considered to cause or contribute to a NAAQS
violation. However, the provisions do not preclude a determination that
a source may be considered to cause and contribute to a NAAQS violation
even when the impact is below a SIL value set forth in 40 CFR
51.165(b)(2) which is utilized by the permitting authority. In fact,
the court in Sierra Club v. EPA (705 F.3d 458, 469), declined to vacate
the PM2.5 SIL value at section 51.165(b)(2) because the
court explicitly found that, unlike section 51.166(k)(2), this
provision does not improperly restrict permitting authorities'
discretion (See 705 F.3d at 465-66). There is nothing in section 9VAC5-
80-1715B(1) that would preclude VADEQ from imposing additional
requirements on any sources necessary to show that a source does not
cause or contribute to a NAAQS violation, including those sources
impacting Class I areas. Therefore, except for the exceptions noted,
EPA is finalizing the proposal to grant approval to Virginia's August
25, 2011 submittal.
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 PSD and nonattainment
NSR programs 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. Final Action
EPA is approving Virginia's August 25, 2011 submittal as a revision
to the Virginia SIP, with the exception of paragraph A(2) of 9VAC5-80-
1715, and the portion of paragraph E(1) of 9VAC5-80-1695 pertaining to
PM2.5 which were withdrawn by Virginia on February 13, 2013.
EPA is finalizing a limited approval of the amendments to the
nonattainment NSR regulations set forth at 9VAC5-80-2010 (Definitions)
and 9VAC5-80-2120 (Offsets). EPA is also approving the August 25, 2011
SIP submittal and the relevant portions of the above identified
infrastructure SIP submittals which relate to the PSD requirements set
forth in CAA sections
[[Page 10382]]
110(a)(2)(C), (D)(i)(II), and (J) for the 1997 PM2.5, 2006
PM2.5, and 2008 lead NAAQS. EPA is also approving the
relevant portion of Virginia's infrastructure submittal relating to the
PSD permit program pursuant to CAA section 110(a)(2)(D)(i)(II) for the
1997 ozone NAAQS. As previously discussed, EPA is not taking final
action on its proposal to approve the portions of the Virginia
infrastructure SIP submittals (which were identified in the NPR and are
identified above) related to the visibility requirements of section
110(a)(2)(D)(i)(II) for the 1997 ozone, 1997 PM2.5, 2006
PM2.5, and 2008 lead NAAQS, because a final rulemaking
action has previously been taken.
Additionally, on December 20, 2012 (77 FR 75380), EPA approved
revisions to Articles 8 and 9 of 9VAC5, chapter 80. Neither that action
nor the current action removes the pre-existing limited approval status
of Virginia's PSD and nonattainment programs (See, Section III: General
Information Pertaining to SIP Submittals from the Commonwealth of
Virginia, 77 FR 75380-81, and Section IV, herein). However, the
December 20, 2012 revisions to the table in paragraph 52.2420(c)
inadvertently omitted reference to the limited approval status. In the
interest of clarity, EPA is correcting that omission in this action.
EPA is also adding a citation for the revised 9VAC5-80-1935 to the
table in paragraph 52.2420(c). This revision was discussed in both the
proposed and final rulemaking actions, but was inadvertently omitted
from the table itself.
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 April 28, 2014. 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 and nonattainment NSR
programs 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: January 28, 2014.
Shawn M. Garvin,
Regional Administrator, Region III.
40 CFR Part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
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:
0
a. The table in paragraph (c) is amended by revising the entries for
Sections 5-10-30, 5-80-1615, 5-80-1625, 5-80-1635, 5-80-1695, 5-80-
1715, 5-80-1765, 5-80-1915, 5-80-1925, 5-80-1935, 5-80-1945, 5-80-1955,
5-80-1965, 5-80-2010, 5-80-2020, 5-80-2120, 5-80-2140, 5-80-2195, 5-80-
2200, 5-80-2210, 5-80-2220, 5-80-2230, and 5-80-2240.
0
b. The table in paragraph (e) is amended by revising the entries for
section 110(a)(2) Infrastructure Requirements for the 1997 8-Hour Ozone
NAAQS, section 110(a)(2) Infrastructure Requirements for the 1997
PM2.5 NAAQS, section 110(a)(2) Infrastructure Requirements
for the 2006 PM2.5 NAAQS, and adding section 110(a)(2)
Infrastructure Requirements for the 2008 Lead NAAQS immediately
following the previous entries.
The amendments read as follows:
[[Page 10383]]
Sec. 52.2420 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Virginia Regulations and Statutes
----------------------------------------------------------------------------------------------------------------
State Explanation [former
State citation Title/subject effective date EPA approval date SIP citation]
----------------------------------------------------------------------------------------------------------------
* * * * * * *
9VAC5, Chapter 10................ General Definitions [Part I]
* * * * * * *
5-10-30.......................... Abbreviations...... 8/17/11 2/25/14 [Insert Revised.
page number where
the document
begins].
* * * * * * *
9VAC5, Chapter 80................ Permits for Stationary Sources [Part VIII]
* * * * * * *
Article 8........................ Permits--Major Stationary Sources and Major Modifications Located in
Prevention of Significant Deterioration Areas
* * * * * * *
5-80-1615........................ Definitions........ 8/17/11 2/25/14 [Insert Revised. Limited
page number where approval remains
the document in effect.
begins].
5-80-1625........................ General............ 7/23/09 12/20/12, 77 FR Revised. Limited
75380. approval remains
in effect.
5-80-1635........................ Ambient Air 8/17/11 2/25/14 [Insert Revised. Limited
Increments. page number where approval remains
the document in effect.
begins].
* * * * * * *
5-80-1695........................ Exemptions......... 8/17/11 2/25/14 [Insert Revised. The
page number where portion of
the document paragraph E(1)
begins]. that relates to
PM2.5 is not in
the SIP. Limited
approval remains
in effect.
* * * * * * *
5-80-1715 (Except paragraph A(2)) Source impact 8/17/11 2/25/14 [Insert Revised. Paragraph
analysis. page number where A(2) is not in the
the document SIP. Limited
begins]. approval remains
in effect.
* * * * * * *
5-80-1765........................ Sources affecting 8/17/11 2/25/14 [Insert Revised. Limited
Federal class I page number where approval remains
areas--additional the document in effect.
requirements. begins].
* * * * * * *
5-80-1915........................ Actions to combine 7/23/09 12/20/12, 77 FR New. Limited
permit terms and 75380. approval.
conditions.
5-80-1925........................ Actions to change 7/23/09 12/20/12, 77 FR Revised. Limited
permits. 75380. approval remains
in effect.
5-80-1935........................ Administrative 7/23/09 12/20/12, 77 FR Revised. Limited
permit amendments. 75380. approval remains
in effect.
5-80-1945........................ Minor permit 7/23/09 12/20/12, 77 FR Revised. Limited
amendments. 75380. approval remains
in effect.
5-80-1955........................ Significant 7/23/09 12/20/12, 77 FR Revised. Limited
amendment 75380. approval remains
procedures. in effect.
5-80-1965........................ Reopening for cause 7/23/09 12/20/12, 77 FR Revised. Limited
75380. approval remains
in effect.
* * * * * * *
Article 9........................ Permits--Major Stationary Sources and Major Modifications Located in
Nonattainment Areas or the Ozone Transport Region
* * * * * * *
5-80-2010........................ Definitions........ 8/17/11 2/25/14 [Insert Revised. Limited
page number where approval of 9/1/06
the document and 8/17/11
begins]. amendments.
5-80-2020........................ General............ 7/23/09 12/20/12, 77 FR Revised. Limited
75380. approval remains
in effect.
* * * * * * *
5-80-2120........................ Offsets............ 8/17/11 2/25/14 [Insert Revised. Limited
page number where approval of 9/1/06
the document and 8/17/11
begins]. amendments.
[[Page 10384]]
* * * * * * *
5-80-2140........................ Exemptions......... 7/23/09 12/20/12, 77 FR Revised. Limited
75380. approval remains
in effect.
* * * * * * *
5-80-2195........................ Actions to combine 7/23/09 12/20/12, 77 FR New. Limited
permit terms and 75380. approval.
conditions.
5-80-2200........................ Actions to change 7/23/09 12/20/12, 77 FR Revised. Limited
permits. 75380. approval remains
in effect.
5-80-2210........................ Administrative 7/23/09 12/20/12, 77 FR Revised. Limited
permit amendments. 75380. approval remains
in effect.
5-80-2220........................ Minor permit 7/23/09 12/20/12, 77 FR Revised. Limited
amendments. 75380. approval remains
in effect.
5-80-2230........................ Significant 7/23/09 12/20/12, 77 FR Revised. Limited
amendment 75380. approval remains
procedures. in effect.
5-80-2240........................ Reopening for cause 7/23/09 12/20/12, 77 FR Revised. Limited
75380. approval remains
in effect.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
(e) * * *
----------------------------------------------------------------------------------------------------------------
Name of non-regulatory SIP Applicable State Additional
revision geographic area submittal date EPA approval date explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Section 110(a)(2) Infrastructure Statewide.......... 12/10/07, 12/ 10/11/11; 76 FR This action
Requirements for the 1997 8-Hour 13/07, 6/8/10, 62635. addresses the
Ozone NAAQS. 6/9/10 following CAA
elements or
portions thereof:
110(a)(2)(A), (B),
(C), (D)(ii), (E),
(F), (G), (H),
(J), (K), (L), and
(M).
................... 11/13/07, 12/ 2/25/14 [Insert This action
13/07, 8/25/11 Federal Register addresses the PSD
page number where related elements
the document of the following
begins]. CAA requirements:
110(a)(2)(D)(i)
(II).
Section 110(a)(2) Infrastructure Statewide.......... 7/10/08, 9/2/ 10/11/11; 76 FR This action
Requirements for the 1997 PM2.5 08, 6/8/10, 6/ 62635. addresses the
NAAQS. 9/10, 4/1/08 following CAA
elements or
portions thereof:
110(a)(2)(A), (B),
(C), (D)(ii), (E),
(F), (G), (H),
(J), (K), (L), and
(M).
................... 11/13/07, 7/10/ 2/25/14 [Insert This action
08, 9/2/08, 8/ Federal Register addresses the PSD
25/11 page number where related elements
the document of the following
begins]. CAA requirements:
110(a)(2)(C),
(D)(i)(II), and
(J).
Section 110(a)(2) Infrastructure Statewide.......... 8/30/10, 4/1/ 10/11/11; 76 FR This action
Requirements for the 2006 PM2.5 11 62635. addresses the
NAAQS. following CAA
elements or
portions thereof:
110(a)(2)(A), (B),
(C), (D)(ii), (E),
(F), (G), (H),
(J), (K), (L), and
(M).
................... 4/1/11, 8/25/ 2/25/14 [Insert This action
11 Federal Register addresses the PSD
page number where related elements
the document of the following
begins]. CAA requirements:
110(a)(2)(C),
(D)(i)(II), and
(J).
Section 110(a)(2) Infrastructure Statewide.......... 3/9/12 9/24/13, 78 FR This action
Requirements for the 2008 Lead 58462. addresses the
NAAQS. following CAA
elements or
portions thereof:
110(a)(2)(A), (B),
(C) (for
enforcement and
regulation of
minor sources),
(D)(i)(I),
(D)(i)(II) (for
the visibility
protection
portion), (D)(ii),
(E)(i), (E)(iii),
(F), (G), (H),
(J), (K), (L), and
(M).
................... 8/25/11 2/25/14 [Insert This action
Federal Register addresses the PSD
page number where related elements
the document of the following
begins]. CAA requirements:
110(a)(2)(C),
(D)(i)(II), and
(J).
[[Page 10385]]
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[FR Doc. 2014-03640 Filed 2-24-14; 8:45 am]
BILLING CODE 6560-50-P