32078 Federal Register / Vol. 80, No. 108 / Friday, June 5, 2015 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2015–0228; FRL–9928–08– 

Region 9] 

Revisions to the California State 

Implementation Plan, Eastern Kern Air 

Pollution Control District, Mojave 

Desert Air Quality Management District 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

revisions to the Eastern Kern Air 

Pollution Control District (EKAPCD) 

and Mojave Desert Air Quality 

Management District (MDAQMD) 

portions of the California State 

Implementation Plan (SIP). These 

revisions concern volatile organic 

compound (VOC) emissions from 

polyester resin operations and oil-water 

separators. The EPA is proposing to 

approve local rules that regulate these 

emission sources under the Clean Air 

Act (CAA or the Act). 

DATES: Any comments on this proposal 

must arrive by July 6, 2015. 

ADDRESSES: Submit comments, 

identified by docket number EPA–R09– 

OAR–2015–0228, by one of the 

following methods: 

1. Federal eRulemaking Portal: 

www.regulations.gov. Follow the on-line 

instructions. 

2. Email: steckel.andrew@epa.gov. 

3. Mail or deliver: Andrew Steckel 

(Air-4), U.S. Environmental Protection 

Agency Region IX, 75 Hawthorne Street, 

San Francisco, CA 94105–3901. 

Instructions: All comments will be 

included in the public docket without 

change and may be made available 

online at www.regulations.gov, 

including any personal information 

provided, unless the comment includes 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Information that 

you consider CBI or otherwise protected 

should be clearly identified as such and 

should not be submitted through 

www.regulations.gov or email. 

www.regulations.gov is an ‘‘anonymous 

access’’ system, and the EPA will not 

know your identity or contact 

information unless you provide it in the 

body of your comment. If you send 

email directly to the EPA, your email 

address will be automatically captured 

and included as part of the public 

comment. If the EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

the 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: Generally, documents in the 

docket for this action are available 

electronically at www.regulations.gov 

and in hard copy at EPA Region IX, 75 

Hawthorne Street, San Francisco, 

California 94105–3901. While all 

documents in the docket are listed at 

www.regulations.gov, some information 

may be publicly available only at the 

hard copy location (e.g., copyrighted 

material, large maps), and some may not 

be publicly available in either location 

(e.g., CBI). To inspect the hard copy 

materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Nancy Levin, EPA Region IX, (415) 972– 

3848, levin.nancy@epa.gov. 

SUPPLEMENTARY INFORMATION: This 

proposal addresses the following local 

rules: EKAPCD Rule 432 Polyester Resin 

Operations and MDAQMD Rule 464 OilWater Separators. In the Rules and 

Regulations section of this Federal 

Register, the EPA is approving these 

local rules in a direct final action 

without prior proposal because the EPA 

believes these SIP revisions are not 

controversial. If the EPA receives 

adverse comments, however, the EPA 

will publish a timely withdrawal of the 

direct final rule and address the 

comments in subsequent action based 

on this proposed rule. Please note that 

if the EPA receives adverse comment on 

an amendment, paragraph or section of 

this rule and if that provision may be 

severed from the remainder of the rule, 

the EPA may adopt as final those 

provisions of the rule that are not the 

subject of an adverse comment. 

The EPA does not plan to open a 

second comment period, so anyone 

interested in commenting should do so 

at this time. If the EPA does not receive 

adverse comments, no further activity is 

planned. For further information, please 

see the direct final action. 

Dated: May 8, 2015. 

Alexis Strauss, 

Acting Regional Administrator, Region IX. 

[FR Doc. 2015–13682 Filed 6–4–15; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2015–0274; FRL–9928–77– 

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. 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

aMay 12, 2014 State Implementation 

Plan (SIP) revision submitted for the 

Commonwealth of Virginia by the 

Virginia Department of Environmental 

Quality (VADEQ). This revision will 

add 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: Written comments must be 

received on or before July 6, 2015. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2015–0274 by one of the 

following methods: 

A. www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

B. Email: campbell.dave@epa.gov. 

C. Mail: EPA–R03–OAR–2015–0274, 

David Campbell, 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 previouslylisted 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–2015– 

0274. EPA’s policy is that all comments 

received will be included in the public 

docket without change, and may be 

made available online at 

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 www.regulations.gov 

or email. The www.regulations.gov Web 


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Federal Register / Vol. 80, No. 108 / Friday, June 5, 2015 / Proposed Rules 32079 

1See 77 FR 41051. 

2CO2e is defined as the mass of the specific GHG 

(in tons), multiplied by its Global Warming 

Potential, as codified in 40 CFR part 98. 

3See 134 S.Ct. 2427. 

4Coalition 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. 

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 email 

comment directly to EPA without going 

through www.regulations.gov, your 

email 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 

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 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 Commonwealth’s 

submittal are available at the Virginia 

Department of Environmental Quality, 

629 E. Main Street, Richmond, Virginia, 

23219. 

FOR FURTHER INFORMATION CONTACT: 

David Talley, (215) 814–2117, or by 

email at talley.david@epa.gov. 

SUPPLEMENTARY INFORMATION: On May 

12, 2014, VADEQ submitted a proposed 

revision to the Virginia SIP. 

I. Background 

The proposed SIP revision 

incorporates amendments to Chapter 85 

under Article 9 of the Virginia 

Administrative Code (9VAC5). 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. 

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. 

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

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 

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 


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32080 Federal Register / Vol. 80, No. 108 / Friday, June 5, 2015 / Proposed Rules 

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 the EPA 

from approving the submission 

addressed in this rule. Virginia’s May 

12, 2014 SIP submission does not add 

any GHG permitting requirements that 

are inconsistent with either decision. 

Likewise, the GHG PAL provisions 

included in Virginia’s May 12, 2014 

submittal 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 

§ 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 believes that it is 

appropriate to approve these provisions 

into the Virginia SIP at this juncture. 

II. Summary of SIP Revision 

The proposed 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 proposed 

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. 

III. Proposed Action 

EPA’s review of this material 

indicates the proposed SIP revision is 

consistent with the CAA and the 

Federal PSD regulations at 40 CFR 

52.21. EPA is proposing to approve 

Virginia’s May 12, 2014 submittal as a 

revision to the Virginia SIP, in 

accordance with CAA section 110. EPA 

is soliciting public comments on the 

issues discussed in this document. 

These comments will be considered 

before taking final action. 

IV. Incorporation by Reference 

In this proposed rulemaking action, 

EPA is proposing to include in a final 

EPA rule, regulatory text that includes 

incorporation by reference. In 

accordance with requirements of 1 CFR 

51.5, the EPA is proposing to 

incorporate by reference Virginia’s GHG 

PAL regulations, as discussed in section 

II of this preamble. The EPA has made, 

and will continue to make, these 

documents generally available 

electronically through 

www.regulations.gov and/or in hard 

copy 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 § 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 

any, state audit privilege or immunity 

law. 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 


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that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive 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, 

relating to Virginia’s PSD program, 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, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

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

Dated: May 26, 2015. 

William C. Early, 

Acting Regional Administrator, Region III. 

[FR Doc. 2015–13804 Filed 6–4–15; 8:45 am] 

BILLING CODE 6560–50–P 


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