75380 Federal Register / Vol. 77, No. 245 / Thursday, December 20, 2012 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2011–0926; FRL–9763–4] 

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: Final rule. 

SUMMARY: EPA is approving a State 

Implementation Plan (SIP) revision 

submitted by the Virginia Department of 

Environmental Quality (VADEQ). These 

revisions 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), 

provide clarification to the exemption to 

Virginia’s permitting rules regarding the 

use of alternate fuels and make minor 

administrative amendments. This action 

is being taken under the Clean Air Act 

(CAA). 

DATES: This final rule is effective on 

January 22, 2013. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R03–OAR–2011–0926. 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: 

Gerallyn Duke, (215) 814–2084, or by 

email at duke.gerallyn@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On September 7, 2012 (77 FR 55168), 

EPA published a notice of proposed 

rulemaking (NPR) for the 

Commonwealth of Virginia. The NPR 

proposed approval of amendments to 

Virginia’s Prevention of Significant 

Deterioration (PSD) and nonattainment 

New Source Review (NSR) programs to 

allow the terms and conditions of 

various elements of the preconstruction 

permit program in Virginia to be 

combined into a single permit, establish 

limitations for issuance of Plantwide 

Applicability Limits (PALs), and clarify 

exemptions to Virginia’s permitting 

rules regarding the use of alternate fuels. 

The formal SIP revision was submitted 

by Virginia on September 27, 2010. 

The SIP revision will allow 

preconstruction permits for major 

stationary sources to be combined into 

one permit with certain restrictions and 

conditions. Each action to combine 

permit terms and conditions must 

include a statement referencing the 

origin of each term or condition in the 

combined permit, 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, 

with certain exceptions, and the 

combined permit will supersede the 

contributing permit. 

In addition, the SIP revision 

establishes state operating permits as 

the sole mechanism for issuing PAL 

permits. 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. The proposed SIP 

revision would limit establishing PALs 

to state operating permits and no longer 

allow PALs to be established through 

major or minor NSR permits. 

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 SIP revision 

updates and restructures the exemptions 

to ensure that there are no conflicts 

between the Virginia Code and Federal 

regulations, including the SIP. 

II. Summary of SIP Revision 

This SIP revision consists of 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: 

5–80–1615 (Definitions), 5–80–1625 

(General), 5–80–1695 (Exemptions), 5– 

80–1925 (Changes to permits), 5–80– 

1935 (Administrative permit 

amendments), 5–80–1945 (Minor permit 

amendments), 5–80–1955 (Significant 

amendment procedures), and 5–80– 

1965 (Reopening for cause). Under 

Article 9, Regulations 5–80–2010 

(Definitions), 5–80–2020 (General), 5– 

80–2140 (Exemptions), 5–80–2200 

(Changes to permits), 5–80–2210 

(Administrative permit amendments), 

5–80–2220 (Minor permit amendments), 

5–80–2230 (Significant amendment 

procedures) and 5–80–2240 (Reopening 

for cause) 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. 

EPA is approving 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) establishing state 

operating permits as the sole 

mechanism for issuing PALs; (3) 

clarifying certain exemptions from 

permitting for alternative fuels to ensure 

no conflict with federal law and 

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 


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Federal Register / Vol. 77, No. 245 / Thursday, December 20, 2012 / Rules and Regulations 75381 

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 

Llaw, 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 

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. 

Other specific requirements of the 

regulations and the rationale for EPA’s 

proposed action are explained in the 

NPR and will not be restated here. No 

public comments were received on the 

NPR. 

IV. Final Action 

EPA is approving the September 27, 

2010 SIP submission pertaining to 

Virginia’s PSD and nonattainment NSR 

programs. 

V. 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 February 19, 2013. 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 


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75382 Federal Register / Vol. 77, No. 245 / Thursday, December 20, 2012 / Rules and Regulations 

regarding Virginia’s PSD and NSR 

permit 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, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: December 10, 2012. 

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 

■ 2. In § 52.2420, the table in paragraph 

(c) is amended by: 

■ a. Revising the entries for Chapter 80, 

Sections 5–80–1615, 5–80–1625, and 5– 

80–1695. 

■ b. Adding an entry for Chapter 80, 

Section 5–80–1915, after the existing 

entry for 5–80–1865. 

■ c. Revising the entries for Chapter 80, 

Sections 5–80–1925, 5–80–1945, 5–80– 

1955, 5–80–1965, 5–80–2010, 5–80– 

2020, and 5–80–2140. 

■ d. Adding an entry for Chapter 80, 

Section 5–80–2195, after the existing 

entry for 5–80–2190. 

■ e. Revising the entries for Chapter 80, 

Sections 5–80–2200, 5–80–2210, 5–80– 

2220, 5–80–2230, and 5–80–2240. 

The amendments read as follows: 

§ 52.2420 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES

State citation Title/subject 

State 

effective 

date 

EPA 

approval 

date 

Explanation 

[former SIP citation] 

*******

9 VAC 5, 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 ............................ 7/23/09 12/20/12 [Insert page number where the document begins].Revised 2 terms. 

5–80–1625 ........ General ................................ 7/23/09 12/20/12 [Insert page number where the document begins].Revised. 

* * * * * * * 

5–80–1695 ........ Exemptions .......................... 7/23/09 12/20/12 [Insert page number where the document begins].Revised. 

* * * * * * * 

5–80–1915 ........ Actions to combine permit 

terms and conditions.

7/23/09 12/20/12 [Insert page number where the document begins].New. 

5–80–1925 ........ Actions to change permits ... 7/23/09 12/20/12 [Insert page number where the document begins].Revised. 

* * * * * * * 

5–80–1945 ........ Minor permit amendments ... 7/23/09 12/20/12 [Insert page number where the document begins].Revised. 

5–80–1955 ........ Significant amendment procedures.7/23/09 12/20/12 [Insert page number where the document begins].Revised. 

5–80–1965 ........ Reopening for cause ........... 7/23/09 12/20/12 [Insert page number where the document begins].Revised. 

* * * * * * * 

Article 9 Permits—Major Stationary Sources and Major Modifications Located in Nonattainment Areas or the Ozone Transport Region 

*******

5–80–2010 ........ Definitions ............................ 7/23/09 12/20/12 [Insert page number where the document begins].Revised 2 terms. 

5–80–2020 ........ General ................................ 7/23/09 12/20/12 [Insert page number where the document begins].Revised. 


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Federal Register / Vol. 77, No. 245 / Thursday, December 20, 2012 / Rules and Regulations 75383 

EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES—Continued 

State citation Title/subject 

State 

effective 

date 

EPA 

approval 

date 

Explanation 

[former SIP citation] 

*******

5–80–2140 ........ Exemptions .......................... 7/23/09 12/20/12 [Insert page number where the document begins].Revised. 

* * * * * * * 

5–80–2195 ........ Actions to combine permit 

terms and conditions.

7/23/09 12/20/12 [Insert page number where the document begins].New. 

5–80–2200 ........ Actions to change permits ... 7/23/09 12/20/12 [Insert page number where the document begins].Revised. 

5–80–2210 ........ Administrative permit 

amendments.

7/23/09 12/20/12 [Insert page number where the document begins].Revised. 

5–80–2220 ........ Minor permit amendments ... 7/23/09 12/20/12 [Insert page number where the document begins].Revised. 

5–80–2230 ........ Significant amendment procedures.7/23/09 12/20/12 [Insert page number where the document begins].Revised. 

5–80–2240 ........ Reopening for cause ........... 7/23/09 12/20/12 [Insert page number where the document begins].Revised. 

* * * * * * * 

* * * * * 

[FR Doc. 2012–30585 Filed 12–19–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2009–0805; EPA–HQ– 

OAR–2009–0491; FRL–9763–3] 

Approval and Promulgation of Air 

Quality Implementation Plans; Illinois; 

Infrastructure SIP Requirements for 

the 2006 PM2.5 NAAQS; Revisions to 

FIPs To Reduce Interstate Transport of 

PM2.5 and Ozone; Correction 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule; correcting 

amendment. 

SUMMARY: This document corrects errors 

in the codification of final rules 

published on July 13, 2011, August 8, 

2011, February 21, 2012, and October 

29, 2012. The July 13, 2011, and October 

29, 2012, actions pertain to State 

Implementation Plan (SIP) submissions 

by Illinois regarding the infrastructure 

requirements of the Clean Air Act (CAA) 

for the 1997 eight-hour ground level 

ozone national ambient air quality 

standards (NAAQS), the 1997 fine 

particle (PM2.5) NAAQS, and the 2006 

24-hour PM2.5 NAAQS. The August 8, 

2011, and February 21, 2012, actions 

pertain to Federal Implementation Plans 

(FIPs) to reduce interstate transport of 

PM2.5 and ozone. 

DATES: This correcting amendment is 

effective on December 20, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Christos Panos, Environmental 

Engineer, Attainment Planning and 

Maintenance Section, Air Programs 

Branch (AR–18J), U.S. Environmental 

Protection Agency, Region 5, Chicago, 

Illinois 60604, (312) 353–8328, or by 

email at panos.christos@epa.gov. 

SUPPLEMENTARY INFORMATION: On August 

8, 2011, (76 FR 48208), EPA published 

FIPs to reduce interstate transport of 

PM2.5 and ozone. It codified the 

regulation, ‘‘Interstate pollutant 

transport provisions; What are the FIP 

requirements for decreases in emissions 

of nitrogen oxides?’’, at 40 CFR 52.745. 

In so doing, EPA had not realized that 

this section had already been reserved 

by a previous rulemaking action, titled 

‘‘Section 110(a)(2) Infrastructure 

Requirements,’’ and created on July 13, 

2011, (76 FR 41075). EPA attempted to 

correct this error on February 21, 2012, 

(77 FR 10324). What resulted, however, 

is that the interstate pollutant transport 

provision disappeared entirely. 

We are now correcting this error by 

codifying the provision titled ‘‘Section 

110(a)(2) Infrastructure Requirements’’ 

at 40 CFR 52.745; and codifying the 

provision titled ‘‘Interstate pollutant 

transport provisions; What are the FIP 

requirements for decreases in emissions 

of nitrogen oxides?’’ at 40 CFR 52.731. 

As a result of this correction, the 

rulemaking action published on October 

29, 2012, (77 FR 65478) is now codified 

at 40 CFR 52.745. 

Section 553 of the Administrative 

Procedure Act, 5 U.S.C. 553(b)(B), 

provides that, when an agency for good 

cause finds that notice and public 

procedure are impracticable, 

unnecessary or contrary to the public 

interest, the agency may issue a rule 

without providing notice and an 

opportunity for public comment. We 

have determined that there is good 

cause for making this rule final without 

prior proposal and opportunity for 

comment because we are merely 

correcting an incorrect citation in a 

previous action. Thus, notice and public 

procedure are unnecessary. We find that 

this constitutes good cause under 5 

U.S.C. 553(b)(B). 

Statutory and Executive Order Reviews 

Under Executive Order (E.O.) 12866 

(58 FR 51735, October 4, 1993), this 

action is not a ‘‘significant regulatory 

action’’ and is therefore not subject to 

review by the Office of Management and 

Budget. For this reason, this action is 

also not subject to Executive Order 

13211, ‘‘Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355 (May 

22, 2001)). Because the agency has made 

a ‘‘good cause’’ finding that this action 

is not subject to notice-and-comment 

requirements under the Administrative 

Procedures Act or any other statute as 

indicated in the Supplementary 

Information section above, it is not 

subject to the regulatory flexibility 

provisions of the Regulatory Flexibility 

Act (5 U.S.C 601 et seq), or to sections 

202 and 205 of the Unfunded Mandates 

Reform Act of 1995 (UMRA) (Pub. L. 

104–4). In addition, this action does not 

significantly or uniquely affect small 

governments or impose a significant 

intergovernmental mandate, as 

described in sections 203 and 204 of 

UMRA. This rule also does not have a 


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