80 FR 32078 - Approval and Promulgation of Air Quality Implementation Plans; Virginia; Prevention of Significant Deterioration; Plantwide Applicability Limits for Greenhouse Gases
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 80, Issue 108 (June 5, 2015)
Federal Register Volume 80, Issue 108 (June 5, 2015)
| Page Range | 32078-32081 | |
| FR Document | 2015-13804 |
[Federal Register Volume 80, Number 108 (Friday, June 5, 2015)] [Proposed Rules] [Pages 32078-32081] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-13804] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2015-0274; FRL-9928-77-Region 3] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Prevention of Significant Deterioration; Plantwide Applicability Limits for Greenhouse Gases AGENCY: Environmental Protection Agency. ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is proposing to approve aMay 12, 2014 State Implementation Plan (SIP) revision submitted for the Commonwealth of Virginia by the Virginia Department of Environmental Quality (VADEQ). This revision will add Plantwide Applicability Limit (PAL) provisions for Greenhouse Gases (GHGs) to Virginia's Prevention of Significant Deterioration (PSD) program. This action is being taken under the Clean Air Act (CAA). DATES: Written comments must be received on or before July 6, 2015. ADDRESSES: Submit your comments, identified by Docket ID Number EPA- R03-OAR-2015-0274 by one of the following methods: A. www.regulations.gov. Follow the on-line instructions for submitting comments. B. Email: [email protected]. C. Mail: EPA-R03-OAR-2015-0274, David Campbell, Associate Director, Office of Permits and Air Toxics, Mailcode 3AP10, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. D. Hand Delivery: At the 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- 2015-0274. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI, or otherwise protected, through www.regulations.gov or email. The www.regulations.gov Web [[Page 32079]] site is an ``anonymous access'' system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the Commonwealth's submittal are available at the Virginia Department of Environmental Quality, 629 E. Main Street, Richmond, Virginia, 23219. FOR FURTHER INFORMATION CONTACT: David Talley, (215) 814-2117, or by email at [email protected]. SUPPLEMENTARY INFORMATION: On May 12, 2014, VADEQ submitted a proposed revision to the Virginia SIP. I. Background The proposed SIP revision incorporates amendments to Chapter 85 under Article 9 of the Virginia Administrative Code (9VAC5). In a June 3, 2010 final rulemaking action, EPA promulgated regulations known as ``the Tailoring Rule,'' which phased in permitting requirements for GHG emissions from stationary sources under the CAA PSD and title V permitting programs. See 75 FR 31514. For Step 1 of the Tailoring Rule, which began on January 2, 2011, PSD or title V requirements applied to sources of GHG emissions only if the sources were subject to PSD or title V ``anyway'' due to their emissions of non-GHG pollutants. These sources are referred to as ``anyway sources.'' Step 2 of the Tailoring Rule, which began on July 1, 2011, applied the PSD and title V permitting requirements under the CAA to sources that were classified as major, and, thus, required to obtain a permit, based solely on their potential GHG emissions and to modifications of otherwise major sources that required a PSD permit because they increased only GHGs above applicable levels in the EPA regulations. Subsequently, on May 13, 2011, EPA took final action to approve a revision to Virginia's PSD SIP, incorporating preconstruction permitting requirements for major stationary sources and major modifications of GHGs, consistent with the Federal PSD requirements at the time. See 76 FR 27898. In a June 12, 2012 final rulemaking action entitled ``Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule Step 3 and GHG Plantwide Applicability Limits,'' \1\ (hereafter, Tailoring Rule Step 3), EPA promulgated a number of streamlining measures intended to improve the administration of GHG PSD permitting programs. Included in that rulemaking were provisions to allow sources to obtain GHG PALs on a carbon dioxide equivalent (CO2 e) \2\ basis, rather than strictly on a mass basis. A PAL is an emissions limitation for a single pollutant expressed in tons per year (tpy) that is enforceable as a practical matter and is established source-wide in accordance with specific criteria. See 40 CFR 52.21(aa)(2)(v). PALs offer an alternative method for determining major New Source Review (NSR) applicability: If a source can maintain its overall emissions of the PAL pollutant below the PAL level, the source can make a change without triggering PSD review. Virginia's May 12, 2014 submittal incorporates PAL provisions into Virginia's PSD program, consistent with EPA's Tailoring Rule Step 3. --------------------------------------------------------------------------- \1\ See 77 FR 41051. \2\ CO2 e is defined as the mass of the specific GHG (in tons), multiplied by its Global Warming Potential, as codified in 40 CFR part 98. --------------------------------------------------------------------------- On June 23, 2014, the United States Supreme Court, in Utility Air Regulatory Group v. Environmental Protection Agency,\3\ issued a decision addressing the Tailoring Rule and the application of PSD permitting requirements to GHG emissions. The Supreme Court said that the EPA may not treat GHGs as an air pollutant for purposes of determining whether a source is a major source required to obtain a PSD permit. The Court also said that the EPA could continue to require that PSD permits, otherwise required based on emissions of pollutants other than GHGs, contain limitations on GHG emissions based on the application of Best Available Control Technology (BACT). The Supreme Court decision effectively upheld PSD permitting requirements for GHG emissions under Step 1 of the Tailoring Rule for ``anyway sources'' and invalidated PSD permitting requirements for Step 2 sources. --------------------------------------------------------------------------- \3\ See 134 S.Ct. 2427. --------------------------------------------------------------------------- In accordance with the Supreme Court decision, on April 10, 2015, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) issued an amended judgment vacating the regulations that implemented Step 2 of the Tailoring Rule, but not the regulations that implement Step 1 of the Tailoring Rule.\4\ The amended judgment preserves, without the need for additional rulemaking by the EPA, the application of the BACT requirement to GHG emissions from sources that are required to obtain a PSD permit based on emissions of pollutants other than GHGs (i.e., the ``anyway'' sources). The D.C. Circuit's judgment vacated the regulations at issue in the litigation, including 40 CFR 51.166(b)(48)(v), ``to the extent they require a stationary source to obtain a PSD permit if greenhouse gases are the only pollutant (i) that the source emits or has the potential to emit above the applicable major source thresholds, or (ii) for which there is a significant emissions increase from a modification.'' \5\ --------------------------------------------------------------------------- \4\ Coalition for Responsible Regulation v. EPA, D.C. Cir., No. 09-1322, 06/26/20, judgment entered for No. 09-1322 on 04/10/2015. \5\ Id. --------------------------------------------------------------------------- EPA may need to take additional steps to revise federal PSD rules in light of the Supreme Court decision and recent D.C. Circuit judgment. In addition, EPA anticipates that many states will revise their existing SIP-approved PSD programs. EPA is not expecting states to have revised their existing PSD program regulations at this juncture. However, EPA is evaluating PSD program submissions to assure that the state's program correctly addresses GHGs consistent with both decisions. Virginia's currently approved PSD SIP continues to require that PSD permits (otherwise required based on emissions of pollutants other than GHGs) contain limitations on GHG emissions based on the application of BACT when sources emit or increase GHGs in the amount of [[Page 32080]] 75,000 tpy, measured as CO2 e. Although Virginia's SIP may also currently contain provisions that are no longer necessary in light of the D.C. Circuit's judgment or the Supreme Court decision, this does not prevent the EPA from approving the submission addressed in this rule. Virginia's May 12, 2014 SIP submission does not add any GHG permitting requirements that are inconsistent with either decision. Likewise, the GHG PAL provisions included in Virginia's May 12, 2014 submittal include some provisions that may no longer be appropriate in light of both the D.C. Circuit judgment and the Supreme Court decision. Since the Supreme Court has determined that sources and modifications may not be defined as ``major'' solely on the basis of the level of GHGs emitted or increased, PALs for GHGs may no longer have value in some situations where a source might have triggered PSD based on GHG emissions alone. However, PALs for GHGs may still have a role to play in determining whether a modification that triggers PSD for a pollutant other than GHGs should also be subject to BACT for GHGs. These provisions, like the other GHG provisions discussed previously, may be revised at some future time. However, these provisions do not add new requirements for sources or modifications that only emit or increase GHGs above the major source threshold or the 75,000 tpy GHG level in Sec. 52.21(b)(49)(iv). Rather, the PAL provisions provide increased flexibility to sources that wish to address their GHG emissions in a PAL. Since this flexibility may still be valuable to sources in at least one context described above, EPA believes that it is appropriate to approve these provisions into the Virginia SIP at this juncture. II. Summary of SIP Revision The proposed revision includes amendments to 9VAC5-85: ``Permits for Stationary Sources of Pollutants Subject to Regulation.'' Specifically, 9VAC5-85-40: ``Prevention of Significant Deterioration Area Permit Actions,'' and 9VAC5-85-50: ``Definitions'' are being amended. Additionally, 9VAC5-85-55: ``Actual plantwide applicability limits,'' is being added to the SIP. The proposed amendments are consistent with the GHG PAL provisions of 40 CFR 52.21 as promulgated by EPA on July 12, 2012. See 77 FR 41072-41075. III. Proposed Action EPA's review of this material indicates the proposed SIP revision is consistent with the CAA and the Federal PSD regulations at 40 CFR 52.21. EPA is proposing to approve Virginia's May 12, 2014 submittal as a revision to the Virginia SIP, in accordance with CAA section 110. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action. IV. Incorporation by Reference In this proposed rulemaking action, EPA is proposing to include in a final EPA rule, regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference Virginia's GHG PAL regulations, as discussed in section II of this preamble. The EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information). V. General Information Pertaining to SIP Submittals From the Commonwealth of Virginia In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) ``privilege'' for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1 1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law. On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1 1198, precludes granting a privilege to documents and information ``required by law,'' including documents and information ``required by Federal law to maintain program delegation, authorization or approval,'' since Virginia must ``enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts. . . .'' The opinion concludes that ``[r]egarding 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 Under the CAA, the Administrator is required to approve a SIP submission [[Page 32081]] that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:Is not a ``significant regulatory action'' subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993); Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4); Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this proposed rule, relating to Virginia's PSD program, does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Authority: 42 U.S.C. 7401 et seq. Dated: May 26, 2015. William C. Early, Acting Regional Administrator, Region III. [FR Doc. 2015-13804 Filed 6-4-15; 8:45 am] BILLING CODE 6560-50-P
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ENVIRONMENTAL PROTECTION the EPA may not be able to consider ENVIRONMENTAL PROTECTION
AGENCY your comment. Electronic files should AGENCY
avoid the use of special characters, any
40 CFR Part 52 form of encryption, and be free of any 40 CFR Part 52
[EPA–R09–OAR–2015–0228; FRL–9928–08– defects or viruses. [EPA–R03–OAR–2015–0274; FRL–9928–77–
Region 9] Docket: Generally, documents in the Region 3]
docket for this action are available
Revisions to the California State Approval and Promulgation of Air
Implementation Plan, Eastern Kern Air electronically at www.regulations.gov
Quality Implementation Plans; Virginia;
Pollution Control District, Mojave and in hard copy at EPA Region IX, 75 Prevention of Significant Deterioration;
Desert Air Quality Management District Hawthorne Street, San Francisco, Plantwide Applicability Limits for
California 94105–3901. While all Greenhouse Gases
AGENCY: Environmental Protection documents in the docket are listed at
Agency (EPA). www.regulations.gov, some information AGENCY: Environmental Protection
ACTION: Proposed rule. may be publicly available only at the Agency.
hard copy location (e.g., copyrighted ACTION: Proposed rule.
SUMMARY: The Environmental Protection
Agency (EPA) is proposing to approve material, large maps), and some may not SUMMARY: The Environmental Protection
revisions to the Eastern Kern Air be publicly available in either location Agency (EPA) is proposing to approve
Pollution Control District (EKAPCD) (e.g., CBI). To inspect the hard copy aMay 12, 2014 State Implementation
and Mojave Desert Air Quality materials, please schedule an Plan (SIP) revision submitted for the
Management District (MDAQMD) appointment during normal business Commonwealth of Virginia by the
portions of the California State hours with the contact listed in the FOR Virginia Department of Environmental
Implementation Plan (SIP). These FURTHER INFORMATION CONTACT section. Quality (VADEQ). This revision will
revisions concern volatile organic FOR FURTHER INFORMATION CONTACT: add Plantwide Applicability Limit
compound (VOC) emissions from Nancy Levin, EPA Region IX, (415) 972– (PAL) provisions for Greenhouse Gases
polyester resin operations and oil-water 3848, levin.nancy@epa.gov. (GHGs) to Virginia’s Prevention of
separators. The EPA is proposing to Significant Deterioration (PSD) program.
approve local rules that regulate these SUPPLEMENTARY INFORMATION: This This action is being taken under the
emission sources under the Clean Air proposal addresses the following local Clean Air Act (CAA).
Act (CAA or the Act). rules: EKAPCD Rule 432 Polyester Resin DATES: Written comments must be
DATES: Any comments on this proposal Operations and MDAQMD Rule 464 Oil- received on or before July 6, 2015.
must arrive by July 6, 2015. Water Separators. In the Rules and ADDRESSES: Submit your comments,
ADDRESSES: Submit comments, Regulations section of this Federal identified by Docket ID Number EPA–
identified by docket number EPA–R09– Register, the EPA is approving these R03–OAR–2015–0274 by one of the
OAR–2015–0228, by one of the local rules in a direct final action following methods:
following methods: without prior proposal because the EPA A. www.regulations.gov. Follow the
1. Federal eRulemaking Portal: believes these SIP revisions are not on-line instructions for submitting
www.regulations.gov. Follow the on-line controversial. If the EPA receives comments.
instructions. adverse comments, however, the EPA B. Email: campbell.dave@epa.gov.
2. Email: steckel.andrew@epa.gov. will publish a timely withdrawal of the C. Mail: EPA–R03–OAR–2015–0274,
3. Mail or deliver: Andrew Steckel David Campbell, Associate Director,
direct final rule and address the
(Air-4), U.S. Environmental Protection Office of Permits and Air Toxics,
comments in subsequent action based
Agency Region IX, 75 Hawthorne Street, Mailcode 3AP10, U.S. Environmental
San Francisco, CA 94105–3901. on this proposed rule. Please note that
Protection Agency, Region III, 1650
Instructions: All comments will be if the EPA receives adverse comment on
Arch Street, Philadelphia, Pennsylvania
included in the public docket without an amendment, paragraph or section of 19103.
change and may be made available this rule and if that provision may be D. Hand Delivery: At the previously-
online at www.regulations.gov, severed from the remainder of the rule, listed EPA Region III address. Such
including any personal information the EPA may adopt as final those deliveries are only accepted during the
provided, unless the comment includes provisions of the rule that are not the Docket’s normal hours of operation, and
Confidential Business Information (CBI) subject of an adverse comment. special arrangements should be made
or other information whose disclosure is The EPA does not plan to open a for deliveries of boxed information.
restricted by statute. Information that second comment period, so anyone Instructions: Direct your comments to
you consider CBI or otherwise protected interested in commenting should do so Docket ID No. EPA–R03–OAR–2015–
should be clearly identified as such and at this time. If the EPA does not receive 0274. EPA’s policy is that all comments
should not be submitted through adverse comments, no further activity is received will be included in the public
www.regulations.gov or email. docket without change, and may be
planned. For further information, please
www.regulations.gov is an ‘‘anonymous made available online at
see the direct final action.
access’’ system, and the EPA will not www.regulations.gov, including any
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
know your identity or contact Dated: May 8, 2015. personal information provided, unless
information unless you provide it in the Alexis Strauss, the comment includes information
body of your comment. If you send Acting Regional Administrator, Region IX. claimed to be Confidential Business
email directly to the EPA, your email [FR Doc. 2015–13682 Filed 6–4–15; 8:45 am] Information (CBI) or other information
address will be automatically captured whose disclosure is restricted by statute.
BILLING CODE 6560–50–P
and included as part of the public Do not submit information that you
comment. If the EPA cannot read your consider to be CBI, or otherwise
comment due to technical difficulties protected, through www.regulations.gov
and cannot contact you for clarification, or email. The www.regulations.gov Web
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75,000 tpy, measured as CO2e. Although 52.21. EPA is proposing to approve Attorney General provided a legal
Virginia’s SIP may also currently Virginia’s May 12, 2014 submittal as a opinion that states that the Privilege
contain provisions that are no longer revision to the Virginia SIP, in law, Va. Code Sec. 10.1 1198, precludes
necessary in light of the D.C. Circuit’s accordance with CAA section 110. EPA granting a privilege to documents and
judgment or the Supreme Court is soliciting public comments on the information ‘‘required by law,’’
decision, this does not prevent the EPA issues discussed in this document. including documents and information
from approving the submission These comments will be considered ‘‘required by Federal law to maintain
addressed in this rule. Virginia’s May before taking final action. program delegation, authorization or
12, 2014 SIP submission does not add approval,’’ since Virginia must ‘‘enforce
IV. Incorporation by Reference
any GHG permitting requirements that Federally authorized environmental
are inconsistent with either decision. In this proposed rulemaking action, programs in a manner that is no less
Likewise, the GHG PAL provisions EPA is proposing to include in a final stringent than their Federal
included in Virginia’s May 12, 2014 EPA rule, regulatory text that includes counterparts. . . .’’ The opinion
submittal include some provisions that incorporation by reference. In concludes that ‘‘[r]egarding § 10.1–1198,
may no longer be appropriate in light of accordance with requirements of 1 CFR therefore, documents or other
both the D.C. Circuit judgment and the 51.5, the EPA is proposing to information needed for civil or criminal
Supreme Court decision. Since the incorporate by reference Virginia’s GHG enforcement under one of these
Supreme Court has determined that PAL regulations, as discussed in section programs could not be privileged
sources and modifications may not be II of this preamble. The EPA has made, because such documents and
defined as ‘‘major’’ solely on the basis and will continue to make, these information are essential to pursuing
of the level of GHGs emitted or documents generally available enforcement in a manner required by
increased, PALs for GHGs may no electronically through Federal law to maintain program
longer have value in some situations www.regulations.gov and/or in hard delegation, authorization or approval.’’
where a source might have triggered copy at the appropriate EPA office (see Virginia’s Immunity law, Va. Code
PSD based on GHG emissions alone. the ADDRESSES section of this preamble Sec. 10.1 1199, provides that ‘‘[t]o the
However, PALs for GHGs may still have for more information). extent consistent with requirements
a role to play in determining whether a V. General Information Pertaining to imposed by Federal law,’’ any person
modification that triggers PSD for a SIP Submittals From the making a voluntary disclosure of
pollutant other than GHGs should also Commonwealth of Virginia information to a state agency regarding
be subject to BACT for GHGs. These a violation of an environmental statute,
provisions, like the other GHG In 1995, Virginia adopted legislation regulation, permit, or administrative
provisions discussed previously, may be that provides, subject to certain order is granted immunity from
revised at some future time. However, conditions, for an environmental administrative or civil penalty. The
these provisions do not add new assessment (audit) ‘‘privilege’’ for Attorney General’s January 12, 1998
requirements for sources or voluntary compliance evaluations opinion states that the quoted language
modifications that only emit or increase performed by a regulated entity. The renders this statute inapplicable to
GHGs above the major source threshold legislation further addresses the relative enforcement of any Federally authorized
or the 75,000 tpy GHG level in burden of proof for parties either programs, since ‘‘no immunity could be
§ 52.21(b)(49)(iv). Rather, the PAL asserting the privilege or seeking afforded from administrative, civil, or
provisions provide increased flexibility disclosure of documents for which the criminal penalties because granting
to sources that wish to address their privilege is claimed. Virginia’s such immunity would not be consistent
GHG emissions in a PAL. Since this legislation also provides, subject to with Federal law, which is one of the
flexibility may still be valuable to certain conditions, for a penalty waiver criteria for immunity.’’
sources in at least one context described for violations of environmental laws Therefore, EPA has determined that
above, EPA believes that it is when a regulated entity discovers such Virginia’s Privilege and Immunity
appropriate to approve these provisions violations pursuant to a voluntary statutes will not preclude the
into the Virginia SIP at this juncture. compliance evaluation and voluntarily Commonwealth from enforcing its PSD
discloses such violations to the program consistent with the Federal
II. Summary of SIP Revision Commonwealth and takes prompt and requirements. In any event, because
The proposed revision includes appropriate measures to remedy the EPA has also determined that a state
amendments to 9VAC5–85: ‘‘Permits for violations. Virginia’s Voluntary audit privilege and immunity law can
Stationary Sources of Pollutants Subject Environmental Assessment Privilege affect only state enforcement and cannot
to Regulation.’’ Specifically, 9VAC5– Law, Va. Code Sec. 10.1 1198, provides have any impact on Federal
85–40: ‘‘Prevention of Significant a privilege that protects from disclosure enforcement authorities, EPA may at
Deterioration Area Permit Actions,’’ and documents and information about the any time invoke its authority under the
9VAC5–85–50: ‘‘Definitions’’ are being content of those documents that are the CAA, including, for example, sections
amended. Additionally, 9VAC5–85–55: product of a voluntary environmental 113, 167, 205, 211 or 213, to enforce the
‘‘Actual plantwide applicability limits,’’ assessment. The Privilege Law does not requirements or prohibitions of the state
is being added to the SIP. The proposed extend to documents or information plan, independently of any state
amendments are consistent with the that: (1) Are generated or developed enforcement effort. In addition, citizen
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
GHG PAL provisions of 40 CFR 52.21 as before the commencement of a enforcement under section 304 of the
promulgated by EPA on July 12, 2012. voluntary environmental assessment; (2) CAA is likewise unaffected by this, or
See 77 FR 41072–41075. are prepared independently of the any, state audit privilege or immunity
assessment process; (3) demonstrate a law.
III. Proposed Action clear, imminent and substantial danger
EPA’s review of this material to the public health or environment; or VI. Statutory and Executive Order
indicates the proposed SIP revision is (4) are required by law. Reviews
consistent with the CAA and the On January 12, 1998, the Under the CAA, the Administrator is
Federal PSD regulations at 40 CFR Commonwealth of Virginia Office of the required to approve a SIP submission
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![Federal Register / Vol. 80, No. 108 / Friday, June 5, 2015 / Proposed Rules 32081
that complies with the provisions of the affect small governments, as described In addition, this proposed rule,
CAA and applicable Federal regulations. in the Unfunded Mandates Reform Act relating to Virginia’s PSD program, does
42 U.S.C. 7410(k); 40 CFR 52.02(a). of 1995 (Pub. L. 104–4); not have tribal implications as specified
Thus, in reviewing SIP submissions, • Does not have Federalism by Executive Order 13175 (65 FR 67249,
EPA’s role is to approve state choices, implications as specified in Executive November 9, 2000), because the SIP is
provided that they meet the criteria of Order 13132 (64 FR 43255, August 10, not approved to apply in Indian country
the CAA. Accordingly, this action 1999); located in the state, and EPA notes that
merely approves state law as meeting • Is not an economically significant it will not impose substantial direct
Federal requirements and does not regulatory action based on health or costs on tribal governments or preempt
impose additional requirements beyond safety risks subject to Executive Order tribal law.
those imposed by state law. For that 13045 (62 FR 19885, April 23, 1997);
reason, this proposed action: List of Subjects in 40 CFR Part 52
• Is not a significant regulatory action
• Is not a ‘‘significant regulatory
subject to Executive Order 13211 (66 FR Environmental protection, Air
action’’ subject to review by the Office
28355, May 22, 2001); pollution control, Carbon monoxide,
of Management and Budget under
Executive Order 12866 (58 FR 51735, • Is not subject to requirements of Incorporation by reference,
Section 12(d) of the National Intergovernmental relations, Lead,
October 4, 1993);
• Does not impose an information Technology Transfer and Advancement Nitrogen dioxide, Ozone, Particulate
collection burden under the provisions Act of 1995 (15 U.S.C. 272 note) because matter, Reporting and recordkeeping
of the Paperwork Reduction Act (44 application of those requirements would requirements, Sulfur oxides, Volatile
U.S.C. 3501 et seq.); be inconsistent with the CAA; and organic compounds.
• Is certified as not having a • Does not provide EPA with the Authority: 42 U.S.C. 7401 et seq.
significant economic impact on a discretionary authority to address, as
Dated: May 26, 2015.
substantial number of small entities appropriate, disproportionate human
health or environmental effects, using William C. Early,
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.); practicable and legally permissible Acting Regional Administrator, Region III.
• Does not contain any unfunded methods, under Executive Order 12898 [FR Doc. 2015–13804 Filed 6–4–15; 8:45 am]
mandate or significantly or uniquely (59 FR 7629, February 16, 1994). BILLING CODE 6560–50–P
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
VerDate Sep<11>2014 18:57 Jun 04, 2015 Jkt 235001 PO 00000 Frm 00040 Fmt 4702 Sfmt 9990 E:\FR\FM\05JNP1.SGM 05JNP1](https://thefederalregister.org/doc/80_FR_32186/page/4.svg)
Document Created: 2015-12-15 15:20:42
Document Modified: 2015-12-15 15:20:42
| 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 | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Written comments must be received on or before July 6, 2015. | |
| Contact | David Talley, (215) 814-2117, or by email at [email protected] | |
| FR Citation | 80 FR 32078 | |
| 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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