80 FR 19541 - Approval and Promulgation of Air Quality Implementation Plans; Virginia-Prevention of Significant Deterioration; Amendment to the Definition of “Regulated NSR Pollutant” Concerning Condensable Particulate Matter
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 80, Issue 70 (April 13, 2015)
Federal Register Volume 80, Issue 70 (April 13, 2015)
| Page Range | 19541-19544 | |
| FR Document | 2015-08417 |
[Federal Register Volume 80, Number 70 (Monday, April 13, 2015)] [Rules and Regulations] [Pages 19541-19544] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-08417] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2013-0593; FRL-9925-96-Region-3] Approval and Promulgation of Air Quality Implementation Plans; Virginia--Prevention of Significant Deterioration; Amendment to the Definition of ``Regulated NSR Pollutant'' Concerning Condensable Particulate Matter AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is taking direct final action to approve a July 25, 2013 State Implementation Plan (SIP) revision submitted by the Virginia Department of Environmental Quality (VADEQ) for the Commonwealth of Virginia. The revision includes a correction to the definition of ``regulated NSR [New Source Review] pollutant'' as it relates to condensable particulate matter under Virginia's Prevention of Significant Deterioration (PSD) program. The revision also includes the correction of a minor typographical error. EPA is approving these revisions to the Virginia SIP in accordance with the requirements of the Clean Air Act (CAA). DATES: This rule is effective on June 12, 2015 without further notice, unless EPA receives adverse written comment by May 13, 2015. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID Number EPA- R03-OAR-2013-0593 by one of the following methods: A. www.regulations.gov. Follow the on-line instructions for submitting comments. B. Email: [email protected]. C. Mail: EPA-R03-OAR-2013-0593, 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 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- 2013-0593. 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 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 State submittal are available at the Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia 23219. FOR FURTHER INFORMATION CONTACT: David Talley, (215) 814-2117, or by email at [email protected]. SUPPLEMENTARY INFORMATION: I. Background On July 25, 2013, VADEQ submitted a formal revision to the Virginia SIP. The SIP revision consists of an amendment to the definition of ``regulated NSR pollutant'' for VADEQ's PSD program under Article 8 of Chapter 80 of the Virginia Administrative Code (VAC), as well as a correction of a minor typographical error. The definition revision pertains to the regulation of particulate matter, specifically, gases that condense to form particles (condensables). ``Particulate matter'' (PM) is a term used to define an air pollutant that consists of a mixture of solid particles and liquid droplets found in the ambient air. PM occurs in many sizes and shapes and can be made up of hundreds of different chemicals. As explained further in the discussion that follows, EPA has regulated several size ranges of particles under the CAA, referred to as indicators of particles, namely PM, coarse PM (PM10 ), and fine PM (PM2.5 ). Initially, EPA established a National Ambient Air Quality Standard (NAAQS) for PM on April 30, 1971, under sections 108 and 109 of the CAA. See 36 FR 8186. Compliance with the original PM NAAQS was based on the measurement of particles in the ambient air using an indicator of particles measuring up to a nominal size of 25 to 45 micrometers ([micro]m). EPA used the indicator name ``total suspended particulate'' or ``TSP'' to define the particle size range that was being measured. Total suspended particulate remained the indicator for the PM NAAQS until 1987 when EPA revised the NAAQS in part by replacing the TSP indicator for both the primary and secondary standards with a new indicator that includes only those particles with an aerodynamic diameter less than or equal to a nominal 10 [micro]m (PM10 ). On July 18, 1997, the EPA made significant revisions to the PM NAAQS in several respects. While the EPA determined that the PM NAAQS should continue to focus on PM10 , EPA also determined that the fine and coarse fractions of PM10 should be considered separately. Accordingly, on July 18, 1997, the EPA added a new indicator for fine particles with a nominal mean aerodynamic diameter less than or equal to 2.5 [micro]m (PM2.5 ), and continued to use PM10 as the indicator for purposes of regulating the coarse fraction of PM10 . See 62 FR 38652. On May 16, 2008, EPA finalized the ``Implementation of the New Source Review (NSR) Program for Particulate [[Page 19542]] Matter Less than 2.5 Micrometers (PM2.5 )'' (2008 NSR PM2.5 Rule) to implement the 1997 PM2.5 NAAQS, including changes to the NSR program. See 73 FR 28321. The 2008 NSR PM2.5 Rule revised the NSR program requirements to establish the framework for implementing preconstruction permit review for the PM2.5 NAAQS in both attainment and nonattainment areas. Among other requirements, the 2008 NSR PM2.5 Rule required states and sources to account for condensables in PM2.5 emission limits. The 2008 NSR PM2.5 Rule contained an error in the regulations for PSD \1\ and in the EPA's Emission Offset Interpretative Ruling.\2\ This error was introduced in the definition of ``regulated NSR pollutant'' that was revised as part of the final rulemaking. The wording of that revised definition had the effect of requiring that PM emissions, PM10 emissions, and PM2.5 emissions-- representing three separate size ranges or indicators of particles-- must all include condensables. EPA did not intend in the 2008 NSR PM2.5 Rule that the term ``particulate matter emissions'' be listed with ``PM2.5 emissions'' and ``PM10 emissions'' in requirements to include the condensable fraction of primary PM. Historically, for ``particulate matter emissions'' often only the filterable fraction had been considered for NSR purposes, consistent with the applicable New Source Performance Standards (NSPS) for PM and the corresponding compliance test method. On October 25, 2012, EPA promulgated a final rule \3\ which revised the definition of ``regulated NSR pollutant'' to correct the error and remove the unintended new requirement on state and local agencies and the regulated community that ``particulate matter emissions'' must include condensables in all cases. EPA's October 25, 2012 action ensured that the originally-intended approach for regulating the three indicators for emissions of particulate matter under the PSD program was codified. Thus, ``PM10 emissions'' and ``PM2.5 emissions'' are regulated as criteria pollutants (that is, under the portion of the definition of ``regulated NSR pollutant'' that refers to ``[a]ny pollutant for which a national ambient air quality standard has been promulgated. . .'' and are required to include the condensable PM fraction emitted by a source. See 40 CFR 51.166(b)(49)(i) and 52.21(b)(50)(i). In contrast, ``particulate matter emissions'' is regulated as a non-criteria pollutant under the portion of the definition that refers to ``[a]ny pollutant that is subject to any standard promulgated under section 111 of the Act,'' where the condensable PM fraction generally is not required to be included in measurements to determine compliance with standards of performance for PM. See 40 CFR 51.166(b)(49)(ii) and 52.21(b)(50)(ii). --------------------------------------------------------------------------- \1\ See 40 CFR 51.166 and 52.21. \2\ See 40 CFR part 51, appendix S. \3\ See 77 FR 65107 (October 25, 2012) (``Implementation of the New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5 ): Amendment to the Definition of `Regulated NSR Pollutant' Concerning Condensable Particulate Matter''). --------------------------------------------------------------------------- Virginia submitted and EPA previously approved a SIP revision to address the provisions of the 2008 PM2.5 NSR Rule which included the errant language relating to ``particulate matter emissions.'' See 79 FR 10377 (February 25, 2014). This direct final rulemaking action makes Virginia's PSD SIP consistent with EPA's original intent, as well as consistent with the corrected Federal requirements that only PM10 and PM2.5 consider condensables, unless a specific NSPS or SIP provision requires otherwise. Additional discussion on EPA's requirements to consider condensables for PM10 and PM2.5 for PSD is available in the preamble to EPA's October 25, 2012 rulemaking action, which is included in the docket for this action. EPA notes that on January 4, 2013, the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit), in Natural Resources Defense Council v. EPA \4\ (hereafter, NRDC v. EPA), issued a decision that remanded the EPA's rules implementing the 1997 PM2.5 NAAQS, including the 2008 NSR PM2.5 Rule. The DC Circuit's remand of the 2008 NSR PM2.5 Rule is relevant to this direct final rulemaking. As previously discussed, this rule promulgated NSR requirements for implementation of PM2.5 in both nonattainment areas (nonattainment NSR) and attainment/unclassifiable areas (PSD). The DC Circuit found that EPA erred in implementing the PM2.5 NAAQS pursuant to the general implementation provisions of subpart 1 of part D of title I of the CAA, rather than pursuant to the additional implementation provisions specific to particulate matter nonattainment areas in subpart 4. The court ordered EPA to ``repromulgate these rules pursuant to Subpart 4 consistent with this opinion.'' Id. at 437. However, as the requirements of subpart 4 only pertain to nonattainment areas, it is EPA's position that the portions of the 2008 NSR PM2.5 Rule that address requirements for PM2.5 in attainment and unclassifiable areas are not affected by the DC Circuit's opinion in NRDC v. EPA. Moreover, EPA does not anticipate the need to revise any PSD requirements promulgated in the 2008 NSR PM2.5 Rule in order to comply with the court's decision. Accordingly, EPA's approval of Virginia's SIP as to the PSD requirements promulgated by the 2008 NSR PM2.5 Rule does not conflict with the DC Circuit's opinion. --------------------------------------------------------------------------- \4\ See 706 F.3d 428 (D.C. Cir. 2013). --------------------------------------------------------------------------- II. Summary of SIP Revision This action amends the previously approved definition of ``regulated NSR pollutant'' under 9VAC5-80-1615 to be consistent with the Federal definition and requirements for condensable PM. Additionally, 9VAC5-80-1615(B) is revised to correct a minor typographical error (a regulatory citation to an incorrect section of the VAC). The revisions being approved were effective in the Commonwealth of Virginia on May 22, 2013. III. 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, the EPA is finalizing the incorporation by reference of revisions to the definitions under 9VAC5-80-1615 as described in Section II of this notice. 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). IV. Final Action EPA is approving VADEQ's July 25, 2013 submittal as a revision to the Virginia SIP. EPA is publishing this rule without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comment. However, in the ``Proposed Rules'' section of this Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on June 12, 2015 without further notice unless EPA receives adverse comment by May 13, 2015. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. [[Page 19543]] 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 section 10.1-1198, precludes granting a privilege to documents and information ``required by law,'' including documents and information ``required by Federal law to maintain program delegation, authorization or approval,'' since Virginia must ``enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts. . . .'' The opinion concludes that ``[r]egarding Sec. 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.'' Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that ``[t]o the extent consistent with requirements imposed by Federal law,'' any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since ``no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.'' Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its PSD 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 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 [[Page 19544]] circuit by June 12, 2015. 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of this Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking action. This action pertaining to Virginia's PSD program 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: March 25, 2015. William C. Early, Acting Regional Administrator, Region III. 40 CFR part 52 is amended as follows: PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 0 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 et seq. Subpart VV--Virginia 0 2. In Sec. 52.2420, the table in paragraph (c) is amended by revising the entry for Section 5-80-1615 to read as follows: Sec. 52.2420 Identification of plan. * * * * * (c) * * * EPA-Approved Virginia Regulations and Statutes ---------------------------------------------------------------------------------------------------------------- State Explanation [former State citation Title/Subject effective date EPA Approval date SIP citation] ---------------------------------------------------------------------------------------------------------------- * * * * * * * ---------------------------------------------------------------------------------------------------------------- 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........ 5/22/13 4/13/15 [Insert Revised. Limited Federal Register approval remains Citation]. in effect. * * * * * * * ---------------------------------------------------------------------------------------------------------------- * * * * * [FR Doc. 2015-08417 Filed 4-10-15; 8:45 am] BILLING CODE 6560-50-P
![Federal Register / Vol. 80, No. 70 / Monday, April 13, 2015 / Rules and Regulations 19541
[FR Doc. 2015–08182 Filed 4–10–15; 8:45 am] special arrangements should be made I. Background
BILLING CODE 6560–50–P for deliveries of boxed information. On July 25, 2013, VADEQ submitted
Instructions: Direct your comments to a formal revision to the Virginia SIP.
Docket ID No. EPA–R03–OAR–2013– The SIP revision consists of an
ENVIRONMENTAL PROTECTION 0593. EPA’s policy is that all comments amendment to the definition of
AGENCY received will be included in the public ‘‘regulated NSR pollutant’’ for VADEQ’s
docket without change, and may be PSD program under Article 8 of Chapter
40 CFR Part 52 made available online at 80 of the Virginia Administrative Code
www.regulations.gov, including any (VAC), as well as a correction of a minor
[EPA–R03–OAR–2013–0593; FRL–9925–96– personal information provided, unless
Region–3] typographical error. The definition
the comment includes information revision pertains to the regulation of
Approval and Promulgation of Air claimed to be Confidential Business particulate matter, specifically, gases
Quality Implementation Plans; Information (CBI) or other information that condense to form particles
Virginia—Prevention of Significant whose disclosure is restricted by statute. (condensables).
Deterioration; Amendment to the Do not submit information that you ‘‘Particulate matter’’ (PM) is a term
Definition of ‘‘Regulated NSR consider to be CBI or otherwise used to define an air pollutant that
Pollutant’’ Concerning Condensable protected through www.regulations.gov consists of a mixture of solid particles
Particulate Matter or email. The www.regulations.gov Web and liquid droplets found in the
site is an ‘‘anonymous access’’ system, ambient air. PM occurs in many sizes
AGENCY: Environmental Protection which means EPA will not know your and shapes and can be made up of
Agency (EPA). identity or contact information unless hundreds of different chemicals. As
ACTION: Direct final rule. you provide it in the body of your explained further in the discussion that
comment. If you send an email follows, EPA has regulated several size
SUMMARY: The Environmental Protection comment directly to EPA without going ranges of particles under the CAA,
Agency (EPA) is taking direct final through www.regulations.gov, your referred to as indicators of particles,
action to approve a July 25, 2013 State email address will be automatically namely PM, coarse PM (PM10), and fine
Implementation Plan (SIP) revision captured and included as part of the PM (PM2.5).
submitted by the Virginia Department of comment that is placed in the public Initially, EPA established a National
Environmental Quality (VADEQ) for the docket and made available on the Ambient Air Quality Standard (NAAQS)
Commonwealth of Virginia. The Internet. If you submit an electronic for PM on April 30, 1971, under
revision includes a correction to the comment, EPA recommends that you sections 108 and 109 of the CAA. See
definition of ‘‘regulated NSR [New include your name and other contact 36 FR 8186. Compliance with the
Source Review] pollutant’’ as it relates information in the body of your original PM NAAQS was based on the
to condensable particulate matter under comment and with any disk or CD–ROM measurement of particles in the ambient
Virginia’s Prevention of Significant you submit. If EPA cannot read your air using an indicator of particles
Deterioration (PSD) program. The comment due to technical difficulties measuring up to a nominal size of 25 to
revision also includes the correction of and cannot contact you for clarification, 45 micrometers (mm). EPA used the
a minor typographical error. EPA is EPA may not be able to consider your indicator name ‘‘total suspended
approving these revisions to the Virginia comment. Electronic files should avoid particulate’’ or ‘‘TSP’’ to define the
SIP in accordance with the requirements the use of special characters, any form particle size range that was being
of the Clean Air Act (CAA). of encryption, and be free of any defects measured. Total suspended particulate
DATES: This rule is effective on June 12, or viruses. remained the indicator for the PM
2015 without further notice, unless EPA DOCKET: All documents in the
NAAQS until 1987 when EPA revised
receives adverse written comment by electronic docket are listed in the the NAAQS in part by replacing the TSP
May 13, 2015. If EPA receives such www.regulations.gov index. Although indicator for both the primary and
comments, it will publish a timely listed in the index, some information is secondary standards with a new
withdrawal of the direct final rule in the not publicly available, i.e., CBI or other indicator that includes only those
Federal Register and inform the public information whose disclosure is particles with an aerodynamic diameter
that the rule will not take effect. restricted by statute. Certain other less than or equal to a nominal 10 mm
ADDRESSES: Submit your comments, material, such as copyrighted material, (PM10).
identified by Docket ID Number EPA– is not placed on the Internet and will be On July 18, 1997, the EPA made
R03–OAR–2013–0593 by one of the publicly available only in hard copy significant revisions to the PM NAAQS
following methods: form. Publicly available docket in several respects. While the EPA
A. www.regulations.gov. Follow the materials are available either determined that the PM NAAQS should
on-line instructions for submitting electronically in www.regulations.gov or continue to focus on PM10, EPA also
comments. in hard copy during normal business determined that the fine and coarse
B. Email: campbell.dave@epa.gov. hours at the Air Protection Division, fractions of PM10 should be considered
C. Mail: EPA–R03–OAR–2013–0593, U.S. Environmental Protection Agency, separately. Accordingly, on July 18,
David Campbell, Associate Director, Region III, 1650 Arch Street, 1997, the EPA added a new indicator for
Office of Permits and Air Toxics, Philadelphia, Pennsylvania 19103. fine particles with a nominal mean
Mailcode 3AP10, U.S. Environmental Copies of the State submittal are
wreier-aviles on DSK5TPTVN1PROD with RULES
aerodynamic diameter less than or equal
Protection Agency, Region III, 1650 available at the Virginia Department of to 2.5 mm (PM2.5), and continued to use
Arch Street, Philadelphia, Pennsylvania Environmental Quality, 629 East Main PM10 as the indicator for purposes of
19103. Street, Richmond, Virginia 23219. regulating the coarse fraction of PM10.
D. Hand Delivery: At the previously- FOR FURTHER INFORMATION CONTACT: See 62 FR 38652.
listed EPA Region III address. Such David Talley, (215) 814–2117, or by On May 16, 2008, EPA finalized the
deliveries are only accepted during the email at talley.david@epa.gov. ‘‘Implementation of the New Source
Docket’s normal hours of operation, and SUPPLEMENTARY INFORMATION: Review (NSR) Program for Particulate
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![19542 Federal Register / Vol. 80, No. 70 / Monday, April 13, 2015 / Rules and Regulations
Matter Less than 2.5 Micrometers condensable PM fraction emitted by a by the DC Circuit’s opinion in NRDC v.
(PM2.5)’’ (2008 NSR PM2.5 Rule) to source. See 40 CFR 51.166(b)(49)(i) and EPA. Moreover, EPA does not anticipate
implement the 1997 PM2.5 NAAQS, 52.21(b)(50)(i). In contrast, ‘‘particulate the need to revise any PSD requirements
including changes to the NSR program. matter emissions’’ is regulated as a non- promulgated in the 2008 NSR PM2.5
See 73 FR 28321. The 2008 NSR PM2.5 criteria pollutant under the portion of Rule in order to comply with the court’s
Rule revised the NSR program the definition that refers to ‘‘[a]ny decision. Accordingly, EPA’s approval
requirements to establish the framework pollutant that is subject to any standard of Virginia’s SIP as to the PSD
for implementing preconstruction promulgated under section 111 of the requirements promulgated by the 2008
permit review for the PM2.5 NAAQS in Act,’’ where the condensable PM NSR PM2.5 Rule does not conflict with
both attainment and nonattainment fraction generally is not required to be the DC Circuit’s opinion.
areas. Among other requirements, the included in measurements to determine
2008 NSR PM2.5 Rule required states compliance with standards of II. Summary of SIP Revision
and sources to account for condensables performance for PM. See 40 CFR This action amends the previously
in PM2.5 emission limits. 51.166(b)(49)(ii) and 52.21(b)(50)(ii). approved definition of ‘‘regulated NSR
The 2008 NSR PM2.5 Rule contained Virginia submitted and EPA pollutant’’ under 9VAC5–80–1615 to be
an error in the regulations for PSD 1 and previously approved a SIP revision to consistent with the Federal definition
in the EPA’s Emission Offset address the provisions of the 2008 PM2.5 and requirements for condensable PM.
Interpretative Ruling.2 This error was NSR Rule which included the errant Additionally, 9VAC5–80–1615(B) is
introduced in the definition of language relating to ‘‘particulate matter revised to correct a minor typographical
‘‘regulated NSR pollutant’’ that was emissions.’’ See 79 FR 10377 (February error (a regulatory citation to an
revised as part of the final rulemaking. 25, 2014). This direct final rulemaking incorrect section of the VAC). The
The wording of that revised definition action makes Virginia’s PSD SIP revisions being approved were effective
had the effect of requiring that PM consistent with EPA’s original intent, as in the Commonwealth of Virginia on
emissions, PM10 emissions, and PM2.5 well as consistent with the corrected May 22, 2013.
emissions—representing three separate Federal requirements that only PM10
size ranges or indicators of particles— and PM2.5 consider condensables, unless III. Incorporation by Reference
must all include condensables. EPA did a specific NSPS or SIP provision
In this rule, EPA is finalizing
not intend in the 2008 NSR PM2.5 Rule requires otherwise. Additional
regulatory text that includes
that the term ‘‘particulate matter discussion on EPA’s requirements to
incorporation by reference. In
emissions’’ be listed with ‘‘PM2.5 consider condensables for PM10 and
accordance with requirements of 1 CFR
emissions’’ and ‘‘PM10 emissions’’ in PM2.5 for PSD is available in the
51.5, the EPA is finalizing the
requirements to include the preamble to EPA’s October 25, 2012
incorporation by reference of revisions
condensable fraction of primary PM. rulemaking action, which is included in
to the definitions under 9VAC5–80–
Historically, for ‘‘particulate matter the docket for this action.
EPA notes that on January 4, 2013, the 1615 as described in Section II of this
emissions’’ often only the filterable
fraction had been considered for NSR U.S. Court of Appeals for the District of notice. EPA has made, and will
purposes, consistent with the applicable Columbia Circuit (DC Circuit), in continue to make, these documents
New Source Performance Standards Natural Resources Defense Council v. generally available electronically
(NSPS) for PM and the corresponding EPA 4 (hereafter, NRDC v. EPA), issued through www.regulations.gov and/or in
compliance test method. On October 25, a decision that remanded the EPA’s hard copy at the appropriate EPA office
2012, EPA promulgated a final rule 3 rules implementing the 1997 PM2.5 (see the ADDRESSES section of this
which revised the definition of NAAQS, including the 2008 NSR PM2.5 preamble for more information).
‘‘regulated NSR pollutant’’ to correct the Rule. The DC Circuit’s remand of the IV. Final Action
error and remove the unintended new 2008 NSR PM2.5 Rule is relevant to this
requirement on state and local agencies direct final rulemaking. As previously EPA is approving VADEQ’s July 25,
and the regulated community that discussed, this rule promulgated NSR 2013 submittal as a revision to the
‘‘particulate matter emissions’’ must requirements for implementation of Virginia SIP. EPA is publishing this rule
include condensables in all cases. EPA’s PM2.5 in both nonattainment areas without prior proposal because EPA
October 25, 2012 action ensured that the (nonattainment NSR) and attainment/ views this as a noncontroversial
originally-intended approach for unclassifiable areas (PSD). The DC amendment and anticipates no adverse
regulating the three indicators for Circuit found that EPA erred in comment. However, in the ‘‘Proposed
emissions of particulate matter under implementing the PM2.5 NAAQS Rules’’ section of this Federal Register,
the PSD program was codified. Thus, pursuant to the general implementation EPA is publishing a separate document
‘‘PM10 emissions’’ and ‘‘PM2.5 provisions of subpart 1 of part D of title that will serve as the proposal to
emissions’’ are regulated as criteria I of the CAA, rather than pursuant to the approve the SIP revision if adverse
pollutants (that is, under the portion of additional implementation provisions comments are filed. This rule will be
the definition of ‘‘regulated NSR specific to particulate matter effective on June 12, 2015 without
pollutant’’ that refers to ‘‘[a]ny pollutant nonattainment areas in subpart 4. The further notice unless EPA receives
for which a national ambient air quality court ordered EPA to ‘‘repromulgate adverse comment by May 13, 2015. If
standard has been promulgated. . .’’ these rules pursuant to Subpart 4 EPA receives adverse comment, EPA
and are required to include the consistent with this opinion.’’ Id. at 437. will publish a timely withdrawal in the
Federal Register informing the public
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However, as the requirements of subpart
1 See 40 CFR 51.166 and 52.21. 4 only pertain to nonattainment areas, it that the rule will not take effect. EPA
2 See 40 CFR part 51, appendix S. is EPA’s position that the portions of the will address all public comments in a
3 See 77 FR 65107 (October 25, 2012)
2008 NSR PM2.5 Rule that address subsequent final rule based on the
(‘‘Implementation of the New Source Review (NSR) requirements for PM2.5 in attainment proposed rule. EPA will not institute a
Program for Particulate Matter Less Than 2.5
Micrometers (PM2.5): Amendment to the Definition and unclassifiable areas are not affected second comment period on this action.
of ‘Regulated NSR Pollutant’ Concerning Any parties interested in commenting
Condensable Particulate Matter’’). 4 See 706 F.3d 428 (D.C. Cir. 2013). must do so at this time.
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![Federal Register / Vol. 80, No. 70 / Monday, April 13, 2015 / Rules and Regulations 19543
V. General Information Pertaining to by Federal law,’’ any person making a under the Regulatory Flexibility Act (5
SIP Submittals From the voluntary disclosure of information to a U.S.C. 601 et seq.);
Commonwealth of Virginia state agency regarding a violation of an • does not contain any unfunded
In 1995, Virginia adopted legislation environmental statute, regulation, mandate or significantly or uniquely
that provides, subject to certain permit, or administrative order is affect small governments, as described
conditions, for an environmental granted immunity from administrative in the Unfunded Mandates Reform Act
assessment (audit) ‘‘privilege’’ for or civil penalty. The Attorney General’s of 1995 (Pub. L. 104–4);
voluntary compliance evaluations January 12, 1998 opinion states that the • does not have Federalism
performed by a regulated entity. The quoted language renders this statute implications as specified in Executive
legislation further addresses the relative inapplicable to enforcement of any Order 13132 (64 FR 43255, August 10,
burden of proof for parties either Federally authorized programs, since 1999);
‘‘no immunity could be afforded from • is not an economically significant
asserting the privilege or seeking
administrative, civil, or criminal regulatory action based on health or
disclosure of documents for which the
penalties because granting such safety risks subject to Executive Order
privilege is claimed. Virginia’s
immunity would not be consistent with 13045 (62 FR 19885, April 23, 1997);
legislation also provides, subject to • is not a significant regulatory action
certain conditions, for a penalty waiver Federal law, which is one of the criteria
for immunity.’’ subject to Executive Order 13211 (66 FR
for violations of environmental laws 28355, May 22, 2001);
when a regulated entity discovers such Therefore, EPA has determined that
Virginia’s Privilege and Immunity • is not subject to requirements of
violations pursuant to a voluntary Section 12(d) of the National
compliance evaluation and voluntarily statutes will not preclude the
Commonwealth from enforcing its PSD Technology Transfer and Advancement
discloses such violations to the Act of 1995 (15 U.S.C. 272 note) because
Commonwealth and takes prompt and program consistent with the Federal
requirements. In any event, because application of those requirements would
appropriate measures to remedy the be inconsistent with the CAA; and
violations. Virginia’s Voluntary EPA has also determined that a state
audit privilege and immunity law can • does not provide EPA with the
Environmental Assessment Privilege discretionary authority to address, as
Law, Va. Code Sec. 10.1–1198, provides affect only state enforcement and cannot
have any impact on Federal appropriate, disproportionate human
a privilege that protects from disclosure health or environmental effects, using
documents and information about the enforcement authorities, EPA may at
any time invoke its authority under the practicable and legally permissible
content of those documents that are the methods, under Executive Order 12898
product of a voluntary environmental CAA, including, for example, sections
113, 167, 205, 211 or 213, to enforce the (59 FR 7629, February 16, 1994).
assessment. The Privilege Law does not In addition, this rule does not have
extend to documents or information requirements or prohibitions of the state
plan, independently of any state tribal implications as specified by
that: (1) Are generated or developed Executive Order 13175 (65 FR 67249,
before the commencement of a enforcement effort. In addition, citizen
enforcement under section 304 of the November 9, 2000), because the SIP is
voluntary environmental assessment; (2) not approved to apply in Indian country
are prepared independently of the CAA is likewise unaffected by this, or
any, state audit privilege or immunity located in the state, and EPA notes that
assessment process; (3) demonstrate a it will not impose substantial direct
clear, imminent and substantial danger law.
costs on tribal governments or preempt
to the public health or environment; or VI. Statutory and Executive Order tribal law.
(4) are required by law. Reviews
On January 12, 1998, the B. Submission to Congress and the
Commonwealth of Virginia Office of the A. General Requirements Comptroller General
Attorney General provided a legal Under the CAA, the Administrator is The Congressional Review Act, 5
opinion that states that the Privilege required to approve a SIP submission U.S.C. 801 et seq., as added by the Small
Law, Va. Code section 10.1–1198, that complies with the provisions of the Business Regulatory Enforcement
precludes granting a privilege to CAA and applicable Federal regulations. Fairness Act of 1996, generally provides
documents and information ‘‘required 42 U.S.C. 7410(k); 40 CFR 52.02(a). that before a rule may take effect, the
by law,’’ including documents and Thus, in reviewing SIP submissions, agency promulgating the rule must
information ‘‘required by Federal law to EPA’s role is to approve state choices, submit a rule report, which includes a
maintain program delegation, provided that they meet the criteria of copy of the rule, to each House of the
authorization or approval,’’ since the CAA. Accordingly, this action Congress and to the Comptroller General
Virginia must ‘‘enforce Federally merely approves state law as meeting of the United States. EPA will submit a
authorized environmental programs in a Federal requirements and does not report containing this action and other
manner that is no less stringent than impose additional requirements beyond required information to the U.S. Senate,
their Federal counterparts. . . .’’ The those imposed by state law. For that the U.S. House of Representatives, and
opinion concludes that ‘‘[r]egarding reason, this action: the Comptroller General of the United
§ 10.1–1198, therefore, documents or • Is not a ‘‘significant regulatory States prior to publication of the rule in
other information needed for civil or action’’ subject to review by the Office the Federal Register. A major rule
criminal enforcement under one of these of Management and Budget under cannot take effect until 60 days after it
programs could not be privileged Executive Order 12866 (58 FR 51735, is published in the Federal Register.
because such documents and
wreier-aviles on DSK5TPTVN1PROD with RULES
October 4, 1993); This action is not a ‘‘major rule’’ as
information are essential to pursuing • does not impose an information defined by 5 U.S.C. 804(2).
enforcement in a manner required by collection burden under the provisions
Federal law to maintain program of the Paperwork Reduction Act (44 C. Petitions for Judicial Review
delegation, authorization or approval.’’ U.S.C. 3501 et seq.); Under section 307(b)(1) of the CAA,
Virginia’s Immunity law, Va. Code Sec. • is certified as not having a petitions for judicial review of this
10.1–1199, provides that ‘‘[t]o the extent significant economic impact on a action must be filed in the United States
consistent with requirements imposed substantial number of small entities Court of Appeals for the appropriate
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![19544 Federal Register / Vol. 80, No. 70 / Monday, April 13, 2015 / Rules and Regulations
circuit by June 12, 2015. Filing a This action pertaining to Virginia’s PART 52—APPROVAL AND
petition for reconsideration by the PSD program may not be challenged PROMULGATION OF
Administrator of this final rule does not later in proceedings to enforce its IMPLEMENTATION PLANS
affect the finality of this action for the requirements. (See section 307(b)(2).)
purposes of judicial review nor does it ■ 1. The authority citation for part 52
extend the time within which a petition List of Subjects in 40 CFR Part 52
continues to read as follows:
for judicial review may be filed, and Environmental protection, Air
shall not postpone the effectiveness of Authority: 42 U.S.C. 7401 et seq.
pollution control, Carbon monoxide,
such rule or action. Parties with Incorporation by reference,
objections to this direct final rule are Subpart VV—Virginia
Intergovernmental relations, Lead,
encouraged to file a comment in
Nitrogen dioxide, Ozone, Particulate ■ 2. In § 52.2420, the table in paragraph
response to the parallel notice of
matter, Reporting and recordkeeping (c) is amended by revising the entry for
proposed rulemaking for this action
requirements, Sulfur oxides, Volatile Section 5–80–1615 to read as follows:
published in the proposed rules section
organic compounds.
of this Federal Register, rather than file
an immediate petition for judicial Dated: March 25, 2015. § 52.2420 Identification of plan.
review of this direct final rule, so that William C. Early, * * * * *
EPA can withdraw this direct final rule Acting Regional Administrator, Region III. (c) * * *
and address the comment in the
proposed rulemaking action. 40 CFR part 52 is amended as follows:
EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES
State effective Explanation [former SIP cita-
State citation Title/Subject EPA Approval date
date tion]
* * * * * * *
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 .............................. 5/22/13 4/13/15 [Insert Federal Reg- Revised. Limited approval re-
ister Citation]. mains in effect.
* * * * * * *
* * * * * submitted SIP revision contains the 1. Federal eRulemaking Portal:
[FR Doc. 2015–08417 Filed 4–10–15; 8:45 am] District’s demonstration regarding www.regulations.gov. Follow the on-line
BILLING CODE 6560–50–P Reasonably Available Control instructions.
Technology (RACT) requirements for 2. Email: steckel.andrew@epa.gov.
the 1997 8-hour ozone National 3. Mail or deliver: Andrew Steckel
ENVIRONMENTAL PROTECTION Ambient Air Quality Standards (Air–4), U.S. Environmental Protection
AGENCY (NAAQS). The submitted SIP revision Agency Region IX, 75 Hawthorne Street,
also contains negative declarations for San Francisco, CA 94105–3901.
40 CFR Part 52 Instructions: All comments will be
volatile organic compound (VOC)
included in the public docket without
[EPA–R09–OAR–2014–0832; FRL–9925–33– source categories for the NSAQMD. We change and may be made available
Region 9] are approving the submitted SIP online at www.regulations.gov,
revision under the Clean Air Act as including any personal information
Revisions to the California State amended in 1990 (CAA or the Act).
Implementation Plan, Northern Sierra provided, unless the comment includes
Air Quality Management District DATES: This rule is effective on June 12, Confidential Business Information (CBI)
2015 without further notice, unless EPA or other information whose disclosure is
AGENCY: Environmental Protection receives adverse comments by May 13, restricted by statute. Information that
Agency (EPA). 2015. If we receive such comments, we you consider CBI or otherwise protected
ACTION: Direct Final rule. will publish a timely withdrawal in the should be clearly identified as such and
wreier-aviles on DSK5TPTVN1PROD with RULES
Federal Register to notify the public should not be submitted through
SUMMARY: The Environmental Protection that this direct final rule will not take www.regulations.gov or email.
Agency (EPA) is taking direct final effect. www.regulations.gov is an ‘‘anonymous
action to approve a revision to the access’’ system, and EPA will not know
Northern Sierra Air Quality ADDRESSES: Submit comments, your identity or contact information
Management District (NSAQMD or the identified by docket number EPA–R09– unless you provide it in the body of
District) portion of the California State OAR–2014–0832, by one of the your comment. If you send email
Implementation Plan (SIP). The following methods: directly to EPA, your email address will
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Document Created: 2015-12-18 11:21:57
Document Modified: 2015-12-18 11:21:57
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Direct final rule. | |
| Dates | This rule is effective on June 12, 2015 without further notice, unless EPA receives adverse written comment by May 13, 2015. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect. | |
| Contact | David Talley, (215) 814-2117, or by email at [email protected] | |
| FR Citation | 80 FR 19541 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Carbon Monoxide; Incorporation by Reference; Intergovernmental Relations; Lead; Nitrogen Dioxide; Ozone; Particulate Matter; Reporting and Recordkeeping Requirements; Sulfur Oxides and Volatile Organic Compounds |
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