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[Federal Register Volume 77, Number 174 (Friday, September 7, 2012)]
[Proposed Rules]
[Pages 55168-55171]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-22094]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2011-0926; FRL-9725-2]

Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Permits for Major Stationary Sources and Major Modifications 
Locating in Prevention of Significant Deterioration Areas and Permits 
for Major Stationary Sources Locating in Nonattainment Areas or the 
Ozone Transport Region

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve State Implementation Plan (SIP) 
revisions submitted by the Virginia Department of Environmental Quality 
(VADEQ). These revisions propose to allow the terms and conditions of 
various elements of the preconstruction program in Virginia to be 
combined into a single permit, establish limitations for issuance of 
Plantwide Applicability Limits (PALs), and provide an exemption to 
Virginia's New Source Review (NSR) Program for the use of alternate 
fuels. This action is being taken under the Clean Air Act (CAA).

DATES: Written comments must be received on or before October 9, 2012.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2011-0926 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. Email: cox.kathleen@epa.gov.
    C. Mail: EPA-R03-OAR-2011-0926, Kathleen Cox, Associate Director, 
Office of Permits and Air Toxics, Mailcode 3AP10, U.S. Environmental 
Protection Agency, Region III, 1650 Arch Street, Philadelphia, 
Pennsylvania 19103.
    D. Hand Delivery: At the previously listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2011-0926. 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.

[[Page 55169]]

Do not submit information that you consider to be CBI or otherwise 
protected through www.regulations.gov or email. The www.regulations.gov 
Web site is an ``anonymous access'' system, which means EPA will not 
know your identity or contact information unless you provide it in the 
body of your comment. If you send an 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 Virginia 
submittal are available at the VADEQ Office, 629 East Main Street, 
Richmond, Virginia 23218.

FOR FURTHER INFORMATION CONTACT: Gerallyn Duke, (215) 814-2084, or by 
email at duke.gerallyn@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. On September 27, 2010, VADEQ 
submitted revisions to its SIP that would allow terms and conditions 
from multiple preconstruction permits issued to a single stationary 
source to be combined into a single permit. The SIP revision also 
establishes state operating permits for major sources as the mechanism 
for issuing PAL permits. It also provides an exemption in Virginia's 
Prevention of Significant Deterioration (PSD) and nonattainment NSR 
programs for the use of alternate fuels, and makes certain minor 
administrative revisions to the current SIP.

I. Background

    Section 110(a)(2)(C) of the CAA requires SIPs to have a a 
preconstruction permit program for both major and minor sources. More 
specifically, SIPs must have the permit programs required under 
subparts C and D of title I (i.e., PSD and nonattainment NSR) and the 
SIP must have a minor preconstruction program that assures that the 
national ambient air quality standards (NAAQS) are achieved. The 
current Virginia SIP implements these requirements by issuing separate 
permits under each program. Consequently, a single project at a 
stationary source may require multiple permits depending on the type 
and amount of pollutants to be emitted. Virginia has found that 
maintaining multiple permits for major stationary sources has resulted 
in a significant workload burden and causes confusion as to where 
permit conditions reside, leading to compliance issues.
    The proposed SIP revisions will allow preconstruction permits for 
major stationary sources to be combined into one permit with certain 
restrictions and conditions. Permit terms and conditions at major 
sources may be combined into one permit at the request of the Virginia 
State Air Pollution Control Board or by the permittee. Actions to 
combine permit terms and conditions must include a statement 
referencing the origin of the term or condition, its effective date and 
whether it is state and/or federally enforceable. All terms and 
conditions of contributing permits must be included in the combined 
permit without change and the combined permit will supercede the 
contributing permit. Redundant terms and conditions may be removed from 
the combined permit but the regulatory basis of the removed term or 
condition must be included. The state may also streamline permit 
conditions where two or more terms or conditions apply to the same unit 
and one is substantially more stringent.
    On December 31, 2002 (67 FR 80186), EPA published final rule 
changes to 40 CFR parts 51 and 52 regarding the CAA's PSD and 
nonattainment NSR programs that are collectively known as NSR Reform. 
These changes included provisions that would allow major stationary 
sources to comply with a PAL to avoid having a significant emissions 
increase that triggers the requirements of the major NSR program. EPA 
granted limited approval of Virginia's NSR Reform regulations on 
October 22, 2008 (73 FR 62897). In the current version of the Virginia 
SIP, PALs may be implemented through a major NSR permit, a minor NSR 
permit or a state operating permit. This is consistent with the federal 
rules at 40 CFR 51.165(f)(2)(ix) and 51.166(w)(2)(ix) with respect to 
the definition of ``PAL permit.'' All three permitting mechanisms in 
the Virginia SIP are acceptable means for establishing a PAL. The 
proposed SIP revision would limit establishing PALs to state operating 
permits. States have discretion in choosing among the enforceable 
mechanisms provided in the definition of ``PAL permit'' and Virginia's 
selection of a state operating permit is consistent with the options 
provided in the federal rules.
    In 2008, the Virginia General Assembly amended Va. Code Sec. 
10.1322.4 to allow exemptions for alternative fuels and raw materials 
from permit requirements. The proposed SIP revision is intended to 
ensure that there are no conflicts between the Virginia Code and 
Federal regulations, including the SIP. On March 24, 2011, the Director 
of the Air Division at VADEQ issued Air Guidance Memo No. APG-308 which 
clarified that the exemption from permitting for the use of alternative 
fuels does not allow a source to bypass NSR for major sources or any 
other federal law or regulation. This document is included in the 
docket for this proposed rulemaking action.

II. Summary of SIP Revision

    The amendments submitted by VADEQ for approval into the SIP were 
adopted by the State Air Pollution Control Board on June 8, 2009 and 
became effective on July 23, 2009. They include revisions to the VADEQ 
regulations at 9VAC5 Chapter 80, Article 8 (Permits for Major 
Stationary Sources and Major Modifications Locating in Prevention of 
Significant Deterioration Areas) and Article 9 (Permits for Major 
Stationary Sources and Modifications Locating in Nonattainment Areas or 
the Ozone Transport Region). The following regulations under Article 8 
are revised: Regulation 5-80-1615 (Definitions), Regulation 5-80-1625 
(General), Regulation 5-80-1695 (Exemptions), Regulation 5-80-1925 
(Changes to permits), Regulation 5-80-1935 (Administrative permit 
amendments), Regulation 5-80-1945 (Minor permit amendments), Regulation 
5-80-1955 (Significant amendment procedures), and Regulation 5-80-1965 
(Reopening for cause). Under Article 9, Regulation 5-80-2010 
(Definitions), Regulation 5-80-2020 (General), Regulation 5-80-2140 
(Exception), Regulation 5-80-2200

[[Page 55170]]

(Changes to permits), Regulation 5-80-2210 (Administrative permit 
amendments), Regulation 5-80-2220 (Minor permit amendments), and 
Regulation 5-80-2230 (Significant amendment procedures) are amended. 
Under Article 8, Regulation 5-80-1915 (Actions to combine permit terms 
and conditions) is added and under Article 9, Regulation 5-80-2195 
(also called ``Actions to combine permit terms and conditions'') is 
added.
    We are proposing approval of Virginia's SIP submission dated 
September 27, 2010 that consists of the following actions that pertain 
to Virginia's PSD and nonattainment NSR Programs: (1) Adding provisions 
to allow the terms and conditions of the various elements of the NSR 
Program to be combined into a single permit; (2) limiting the issuance 
of PALs to the state operating permit program; (3) providing certain 
exemptions from permitting for alternative fuels unless required by 
federal law or regulation; and (4) making minor administrative 
amendments.

III. General Information Pertaining to SIP Submittals From the 
Commonwealth of Virginia

    In 1995, Virginia adopted legislation that provides, subject to 
certain conditions, for an environmental assessment (audit) 
``privilege'' for voluntary compliance evaluations performed by a 
regulated entity. The legislation further addresses the relative burden 
of proof for parties either asserting the privilege or seeking 
disclosure of documents for which the privilege is claimed. Virginia's 
legislation also provides, subject to certain conditions, for a penalty 
waiver for violations of environmental laws when a regulated entity 
discovers such violations pursuant to a voluntary compliance evaluation 
and voluntarily discloses such violations to the Commonwealth and takes 
prompt and appropriate measures to remedy the violations. Virginia's 
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and 
information about the content of those documents that are the product 
of a voluntary environmental assessment. The Privilege Law does not 
extend to documents or information: (1) That are generated or developed 
before the commencement of a voluntary environmental assessment; (2) 
that are prepared independently of the assessment process; (3) that 
demonstrate a clear, imminent and substantial danger to the public 
health or environment; or (4) that are required by law.
    On January 12, 1998, the Commonwealth of Virginia Office of the 
Attorney General provided a legal opinion that states that the 
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege 
to documents and information ``required by law,'' including documents 
and information ``required by 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 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.

IV. Proposed Action

    Based upon EPA's review of the September 27, 2010 submittal, we 
find the regulations are consistent with their Federal counterparts. 
EPA is proposing to approve the Virginia SIP revisions which add 
provisions to allow the terms and conditions of the various elements of 
the PSD and nonattainment NSR Programs to be combined into a single 
permit; limit the issuance of PALs to the state operating permit 
program; provide exemptions from permitting for alternative fuels; and 
make minor administrative changes. EPA is soliciting public comments on 
the issues discussed in this document. These comments will be 
considered before taking final action.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely proposes to approve state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National

[[Page 55171]]

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 related to Virginia permits for 
major stationary sources and major modifications locating in PSD or 
Nonattainment Areas or the Ozone Transport Region 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, 
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: August 23, 2012.
W.C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2012-22094 Filed 9-6-12; 8:45 am]
BILLING CODE 6560-50-P
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