Approval and Promulgation of Air Quality Implementation Plans; Virginia; Major New Source Review

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving revisions to the Commonwealth of Virginia state implementation plan (SIP). The revisions amend Virginia's major source New Source Review (NSR) regulations to make them consistent with the federal program. EPA is approving these revisions to the Virginia SIP in accordance with the requirements of the Clean Air Act (CAA).

DATES:

This final rule is effective on September 27, 2017.

ADDRESSES:

EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2016-0052. All documents in the docket are listed on the https://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., 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 through https://www.regulations.gov or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information.

FOR FURTHER INFORMATION CONTACT:

David Talley, (215) 814-2117, or by email at talley.david@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

On April 18, 2017 (73 FR 18272), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Virginia. In the NPR, EPA proposed approval of revisions to Virginia's NSR regulations. On October 16, 2015, the Commonwealth of Virginia through the Virginia Department of Environmental Quality (VADEQ), submitted a formal revision to the Virginia SIP. The SIP revision consists of amendments to the preconstruction permit requirements under VADEQ's major NSR permit program. The revision affects sources subject to VADEQ's Prevention of Significant Deterioration (PSD) program, which applies in areas which are in attainment with (or unclassifiable for) the national ambient air quality standards (NAAQS), as well as affecting sources subject to its nonattainment NSR permit program, applicable in areas not in attainment with the NAAQS. By letter dated March 1, 2017, VADEQ officially withdrew a small and specific portion of the October 16, 2015 submittal from consideration for approval into the Virginia SIP. A copy of the letter has been included in the docket for this action. Further discussion of the withdrawal is provided in section II.A of this notice.

II. Summary of SIP Revision and EPA Analysis

As discussed in the NPR, the October 16, 2015 SIP submittal revision (as amended March 1, 2017) (hereinafter referred to as the 2015 NSR SIP Revision) generally makes the Virginia Administrative Code regulations at 9VAC5 consistent with the federal NSR program at 40 CFR 51.165 and 51.166. The specific changes to 9VAC5: (1) Allow the use of a 10-year lookback period to calculate pre-change emissions for sources other than electric utility steam generating units (EGUs); (2) allow the use of different lookback periods for different regulated NSR pollutants; (3) extend the effective period for plantwide applicability limits (PALs) to 10 years; and, (4) allow replacement units to be treated as existing units, and thus provide the ability to use baseline actual and projected actual emissions when determining applicability. Additionally, there are a number of minor changes which are strictly administrative in nature, consisting of small grammatical revisions, or re-numbering. EPA is approving VADEQ's 2015 NSR SIP Revision as a revision to the Virginia SIP because it meets the Federal requirements of 40 CFR 51.165 and 51.165, and CAA sections 110(a) and 173. Additionally, the revisions are in accordance with section 110(l) of the CAA because they will not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable CAA requirement.

A. Baseline Actual Emissions

NSR applicability is determined by comparing the pre-change emissions of the source(s) affected by the project at hand to the post-change emissions, and determining whether the net increase is “significant.” For new units, pre-change (baseline) emissions are zero. For modified units, sources must calculate baseline actual emissions (BAE). For sources other than EGUs, the Federal PSD and nonattainment NSR regulations provide for the calculation of BAE using “. . . the average rate, in tons per year, at which the emissions unit actually emitted the pollutant during any consecutive 24-month period selected by the owner or operator within the 10-year period immediately preceding either the date the owner or operator begins actual construction of the project, or the date a complete permit application is received by the reviewing authority. . .” See 40 CFR 51.165(a)(1)(xxxv)(B) and 51.166(b)(47)(ii). VADEQ's previously approved BAE definitions, codified at 9VAC5-80 sections 1615C (PSD) and 2010C (nonattainment NSR), provided for a 5-year lookback period. The 2015 NSR SIP Revision included VADEQ's revised definitions of BAE to provide for a 10-year lookback period for non EGUs, consistent with the Federal counterpart.

When EPA originally approved the 5-year lookback into VADEQ's nonattainment NSR and PSD programs, limited approval was granted. See 73 FR 62893, 62897 (October 22, 2008). The previous definitions of BAE at 9VAC5-80 sections 1615C and 2010C in VADEQ's June 27, 2008 SIP submittals included the 5-year lookback which EPA found approvable, despite being different from the Federal lookback period. However, VADEQ's regulations at the time in sections 1615C and 2010C also included provisions for the use of a different time period to calculate BAE if it was found to be more representative of normal operations. In our October 22, 2008 final rulemaking notice, EPA raised concerns that this provision could allow for the use of a lookback period that extended beyond the ten years allowed by the Federal programs for PSD and NSR. However, EPA noted that because VADEQ had affirmed that it was not its intention to extend the lookback period beyond ten years, a limited approval was granted. See 73 FR at 62898. In VADEQ's 2015 NSR SIP Revision submittal, the provision allowing for the use of a different lookback period if it was found to be more representative of normal operations was struck from the definition of BAE at 9VAC5-80 section 1615C, making it consistent with the federal counterpart. However, that provision was inadvertently left in the definition of BAE in the version of 9VAC5-80 section 2010C for NSR. By letter dated March 1, 2017, VADEQ officially withdrew from EPA's consideration for inclusion into the SIP the portion of the definition of BAE at section 2010C stating, “The board will allow the use of another time period upon a determination that it is more representative of normal source operation.” Thus, EPA finds the revised definition of BAE at 9VAC5-80 section 2010C (with the provision for a different lookback period stricken) fully approvable as the definition is consistent with Federal CAA requirements permitting up to a 10-year lookback. EPA expects that the sentence withdrawn from the SIP submittal will be removed from the Virginia Code as soon as practicable as Virginia affirmed in its March 1, 2017 letter, and that VADEQ will implement its NSR program consistent with the approved SIP and the Federal requirements for NSR in the interim. With this approval, EPA also removes its prior limited approval for these regulations.

Finally, the Federal requirement for calculating BAE for PSD and NSR provide for the use of different 24-month periods for different regulated NSR pollutants. See 40 CFR 51.165(a)(1)(xxxv)(B)(4) and 51.166(b)(47)(ii)(c). VADEQ has revised the BAE definitions at 9VAC5-80 sections 1615C and 2010C, and 9VAC5-85 section 50 to be consistent with the federal requirements relating to different lookback periods for different regulated NSR pollutants. Because these revisions are consistent with federal definitions in 40 CFR 51.165 and 51.166 for using different 24-month periods for different regulated NSR pollutants, EPA finds these revisions approvable in accordance with CAA requirements.

B. Plantwide Applicability Limits (PALs)

Federal requirements for PALs include an effective period of ten years for the plantwide permit. See 40 CFR sections 51.165(f) et seq and 51.166(w) et seq. The 2015 NSR SIP Revision included amended versions of 9VAC-5-80 sections 1615C, 1865C(1)(f), 2010C, and 2144C(1)(f), as well as 9VAC5-85-50, to provide for a PAL effective period of ten years, consistent with the Federal regulations providing for a ten-year PAL effective period. In addition, the 2015 NSR SIP Revision included amended versions of 9VAC5-80 sections 1865E and 2144E and 9VAC5-85-55 to allow for the use of different 24-month periods for different regulated NSR pollutants when establishing PALs, consistent with the discussion in Section II.A of this notice. EPA finds these amended provisions approvable for the Virginia SIP because these amended regulations for PAL effective period and baseline calculations are consistent with Federal requirements for PALs in 40 CFR 51.165 and 51.166.

C. Replacement Units

Finally, the 2015 NSR SIP Revision submittal added definitions of “replacement unit,” and amends the definitions of “emissions unit,” under 9VAC5-80 sections 1615C and 2010C and 9VAC5-85 section 50. The effect of these revisions is to allow replacement units to be treated as existing units when calculating pre- and post-change emissions for purposes of determining NSR applicability. VADEQ's definitions of “replacement unit” are consistent with their Federal counterparts at 40 CFR 51.165(a)(1)(xxi) and 51.166(b)(32). VADEQ's amended definitions of “emissions unit” are consistent with their Federal counterparts at 40 CFR 51.165(a)(1)(vii) and 51.166(b)(7), as is VADEQ's approach to calculating pre- and post-change emissions for replacement units. Thus, EPA finds these new and amended provisions in the 2015 NSR SIP Revision approvable.

EPA finds the revisions to 9VAC5-80 sections 1615, 1865, 2010, and 2144 and 9 VAC5-85 sections 50 and 55 (including the changes discussed herein as well as the minor administrative changes for grammatical and numbering consistency) consistent with CAA section 110(l). None of the revisions interfere with any applicable requirement concerning attainment of any NAAQS nor interfere with reasonable further progress or any other applicable requirement of the CAA. As described in this rulemaking, the revisions to the Virginia Code in the 2015 NSR SIP Revision are consistent with federal requirements for PSD and NSR in 40 CFR 51.165 and 51.166. Because the revisions are consistent with federal requirements for PSD and NSR permitting programs which permit construction and modifications in accordance with permitting and emission limitation requirements and address definitions for BAE and PAL effective periods, EPA does not expect any interference with the NAAQS from these revisions.

Other specific requirements of the 2015 NSR SIP Revision 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 April 18, 2017 NPR. A full set of these comments is included in the docket for this final action. A summary of the comments and EPA's responses are included herein.

Comment: The first commenter asserts that EPA “. . . shouldn't have the right to tell States what they can and cannot do,” and further, that the States are capable of “. . . cleaning up the air.”

EPA Response: 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 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 October 16, 2015 SIP 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 division of responsibilities between EPA and the states in the section 110 process was reaffirmed by the U.S. Court of Appeals for the District of Columbia Circuit in the Commonwealth of Virginia, et al., v. EPA, 108 F.3d 1397 (D.C. Cir. 1997). The action being finalized today approving revisions to Virginia regulations which implement the PSD and NSR permit program required by the CAA is consistent with EPA's responsibilities as established by Congress under CAA section 110. EPA is approving the 2015 NSR SIP Revision because it complies with the provisions of the CAA and applicable federal regulations as discussed in the NPR and in this rulemaking action. See section 110(k) of the CAA.

Comment: The second commenter expressed a need for clean air, and urged EPA to “(s)top trying to lower . . .” environmental standards.

EPA Response: EPA thanks the commenter for the concern for environmental issues such as clean air and water. However, the comment is not germane or relevant to the issues in this rulemaking to bring Virginia's NSR program in line with federal NSR requirements in 40 CFR 51.165 and 51.166. EPA has fully explained our reasons for approving VA's revisions to its NSR program in this notice and in the NPR. As discussed in the NPR, none of the revisions interfere with any applicable requirement concerning attainment of any NAAQS nor interfere with reasonable further progress or any other applicable requirement of the CAA. In addition, the comment lacks the required specificity and does not address any specific Virginia regulation upon which we should act differently nor address any action EPA should take differently with regards to Virginia's NSR regulations.

IV. Final Action

EPA is approving the 2015 NSR SIP Revision as it is in accordance with requirements in the CAA in sections 110 and 173 and with federal regulations at 40 CFR 51.165 and 51.166. Additionally, because the Virginia regulations submitted in the 2015 NSR SIP Revision correct issues related to appropriate BAE and “lookback period” in Virginia's NSR permit program for which EPA previously granted limited approval in 2008, EPA now grants full approval to Virginia's NSR permit program for PSD and NSR permitting.

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 NSR 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. Incorporation by Reference

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the VADEQ regulations regarding definitions and permitting requirements discussed in Section II of this notice. EPA has made, and will continue to make, these materials generally available through http://www.regulations.gov and/or at the EPA Region III Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.

VII. 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 Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

B. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 27, 2017. 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 preconstruction permitting requirements 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

40 CFR part 52 is amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

1. The authority citation for 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 revising the entries for Sections “5-50-270”, “5-50-280”, “5-80-1605” through “5-80-2240”,”5-85-50”, and “5-85-55” to read as follows: