80 FR 72903 - 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 225 (November 23, 2015)
Federal Register Volume 80, Issue 225 (November 23, 2015)
| Page Range | 72903-72906 | |
| FR Document | 2015-29680 |
[Federal Register Volume 80, Number 225 (Monday, November 23, 2015)] [Rules and Regulations] [Pages 72903-72906] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-29680] [[Page 72903]] ======================================================================= ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2015-0274; FRL-9937-25-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 (EPA). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is approving a May 12, 2014 State Implementation Plan (SIP) revision submitted for the Commonwealth of Virginia by the Virginia Department of Environmental Quality (VADEQ). This revision adds 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: This final rule is effective on December 23, 2015. ADDRESSES: EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2015-0274. All documents in the docket are listed in the www.regulations.gov Web site. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available electronically through www.regulations.gov or may be viewed 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 June 5, 2015 (80 FR 32078), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Virginia. In the NPR, EPA proposed approval of Virginia's May 12, 2014 SIP submittal. The revision incorporates PAL provisions for GHGs into Virginia's PSD program. 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 [[Page 72904]] 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 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 EPA from approving the submission addressed in this rule. This rulemaking action does not add any GHG permitting requirements that are inconsistent with either decision. Likewise, the GHG PAL provisions being approved in this action 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 40 CFR 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 is approving these provisions as a revision to the Virginia SIP at this juncture. II. Summary of SIP Revision The 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 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. These provisions were effective in Virginia on March 13, 2014. Other specific requirements of the May 12, 2014 SIP submittal and the rationale for EPA's approval are explained in the NPR and will not be restated here. No comments were received on the NPR. III. Final Action EPA is approving VADEQ's May 12, 2014 SIP submittal as a revision to the Virginia SIP. IV. Incorporation by Reference In this rulemaking action, 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 the VADEQ rules regarding GHG PALs discussed in section II of this preamble. EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov, or they may be viewed 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 [[Page 72905]] 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). 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 January 22, 2016. 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 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, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Dated: October 28, 2015. Shawn M. Garvin, 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 entries under Chapter 85 for Sections 5-85-40 and 5-85-50 and adding an entry for Section 5-85-55 to read as follows: Sec. 52.2420 Identification of plan. * * * * * (c) * * * EPA-Approved Virginia Regulations and Statutes ---------------------------------------------------------------------------------------------------------------- Explanation State citation Title/subject State EPA approval date [former SIP effective date citation] ---------------------------------------------------------------------------------------------------------------- * * * * * * * ---------------------------------------------------------------------------------------------------------------- 9 VAC 5, Chapter 85 Permits for Stationary Sources of Pollutants Subject to Regulation ---------------------------------------------------------------------------------------------------------------- * * * * * * * ---------------------------------------------------------------------------------------------------------------- Part III Prevention of Significant Deterioration Permit Actions ---------------------------------------------------------------------------------------------------------------- 5-85-40........................ Prevention of 03/13/14 11/23/15 [Insert Significant Federal Register Deterioration Area citation]. Permit Actions. [[Page 72906]] 5-85-50........................ Definitions............ 03/13/14 11/23/15 [Insert Federal Register citation]. 5-85-55........................ Actual plantwide 03/13/14 11/23/15 [Insert Added. applicability limits Federal Register (PALs). citation]. * * * * * * * ---------------------------------------------------------------------------------------------------------------- * * * * * [FR Doc. 2015-29680 Filed 11-20-15; 8:45 am] BILLING CODE 6560-50-P
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ENVIRONMENTAL PROTECTION May 12, 2014 SIP submittal. The 12, 2014 submittal incorporates PAL
AGENCY revision incorporates PAL provisions for provisions into Virginia’s PSD program,
GHGs into Virginia’s PSD program. consistent with EPA’s Tailoring Rule
40 CFR Part 52 In a June 3, 2010 final rulemaking Step 3.
action, EPA promulgated regulations On June 23, 2014, the United States
[EPA–R03–OAR–2015–0274; FRL–9937–25–
Region 3] known as ‘‘the Tailoring Rule,’’ which Supreme Court, in Utility Air Regulatory
phased in permitting requirements for Group v. Environmental Protection
Approval and Promulgation of Air GHG emissions from stationary sources Agency,3 issued a decision addressing
Quality Implementation Plans; Virginia; under the CAA PSD and title V the Tailoring Rule and the application
Prevention of Significant Deterioration; permitting programs. See 75 FR 31514. of PSD permitting requirements to GHG
Plantwide Applicability Limits for For Step 1 of the Tailoring Rule, which emissions. The Supreme Court said that
Greenhouse Gases began on January 2, 2011, PSD or title the EPA may not treat GHGs as an air
V requirements applied to sources of pollutant for purposes of determining
AGENCY: Environmental Protection GHG emissions only if the sources were whether a source is a major source
Agency (EPA). subject to PSD or title V ‘‘anyway’’ due required to obtain a PSD permit. The
ACTION: Final rule. to their emissions of non-GHG Court also said that the EPA could
pollutants. These sources are referred to continue to require that PSD permits,
SUMMARY: The Environmental Protection as ‘‘anyway sources.’’ Step 2 of the
otherwise required based on emissions
Agency (EPA) is approving a May 12, Tailoring Rule, which began on July 1, of pollutants other than GHGs, contain
2014 State Implementation Plan (SIP) 2011, applied the PSD and title V limitations on GHG emissions based on
revision submitted for the permitting requirements under the CAA the application of Best Available
Commonwealth of Virginia by the to sources that were classified as major, Control Technology (BACT). The
Virginia Department of Environmental and, thus, required to obtain a permit, Supreme Court decision effectively
Quality (VADEQ). This revision adds based solely on their potential GHG upheld PSD permitting requirements for
Plantwide Applicability Limit (PAL) emissions and to modifications of GHG emissions under Step 1 of the
provisions for Greenhouse Gases (GHGs) otherwise major sources that required a Tailoring Rule for ‘‘anyway sources’’
to Virginia’s Prevention of Significant PSD permit because they increased only and invalidated PSD permitting
Deterioration (PSD) program. This GHGs above applicable levels in the requirements for Step 2 sources.
action is being taken under the Clean EPA regulations. Subsequently, on May In accordance with the Supreme
Air Act (CAA). 13, 2011, EPA took final action to Court decision, on April 10, 2015, the
DATES: This final rule is effective on approve a revision to Virginia’s PSD U.S. Court of Appeals for the District of
December 23, 2015. SIP, incorporating preconstruction Columbia Circuit (D.C. Circuit) issued
ADDRESSES: EPA has established a permitting requirements for major an amended judgment vacating the
docket for this action under Docket ID stationary sources and major regulations that implemented Step 2 of
Number EPA–R03–OAR–2015–0274. All modifications of GHGs, consistent with the Tailoring Rule, but not the
documents in the docket are listed in the Federal PSD requirements at the regulations that implement Step 1 of the
the www.regulations.gov Web site. time. See 76 FR 27898. Tailoring Rule.4 The amended judgment
Although listed in the electronic docket, In a June 12, 2012 final rulemaking preserves, without the need for
some information is not publicly action entitled ‘‘Prevention of additional rulemaking by the EPA, the
available, i.e., confidential business Significant Deterioration and Title V application of the BACT requirement to
information (CBI) or other information Greenhouse Gas Tailoring Rule Step 3 GHG emissions from sources that are
whose disclosure is restricted by statute. and GHG Plantwide Applicability required to obtain a PSD permit based
Certain other material, such as Limits’’ 1 (hereafter, Tailoring Rule Step on emissions of pollutants other than
copyrighted material, is not placed on 3), EPA promulgated a number of GHGs (i.e., the ‘‘anyway’’ sources). The
the Internet and will be publicly streamlining measures intended to D.C. Circuit’s judgment vacated the
available only in hard copy form. improve the administration of GHG PSD regulations at issue in the litigation,
Publicly available docket materials are permitting programs. Included in that including 40 CFR 51.166(b)(48)(v), ‘‘to
available electronically through rulemaking were provisions to allow the extent they require a stationary
www.regulations.gov or may be viewed sources to obtain GHG PALs on a carbon source to obtain a PSD permit if
during normal business hours at the Air dioxide equivalent (CO2e) 2 basis, rather greenhouse gases are the only pollutant
Protection Division, U.S. Environmental than strictly on a mass basis. A PAL is (i) that the source emits or has the
Protection Agency, Region III, 1650 an emissions limitation for a single potential to emit above the applicable
Arch Street, Philadelphia, Pennsylvania pollutant expressed in tons per year major source thresholds, or (ii) for
19103. Copies of the State submittal are (tpy) that is enforceable as a practical which there is a significant emissions
available at the Virginia Department of matter and is established source-wide in increase from a modification.’’ 5
Environmental Quality, 629 East Main accordance with specific criteria. See 40 EPA may need to take additional steps
Street, Richmond, Virginia 23219. CFR 52.21(aa)(2)(v). PALs offer an to revise federal PSD rules in light of the
FOR FURTHER INFORMATION CONTACT: alternative method for determining Supreme Court decision and recent D.C.
David Talley, (215) 814–2117, or by major New Source Review (NSR) Circuit judgment. In addition, EPA
email at talley.david@epa.gov. applicability: If a source can maintain anticipates that many states will revise
its overall emissions of the PAL their existing SIP-approved PSD
SUPPLEMENTARY INFORMATION:
pollutant below the PAL level, the programs. EPA is not expecting states to
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I. Background source can make a change without have revised their existing PSD program
triggering PSD review. Virginia’s May
On June 5, 2015 (80 FR 32078), EPA 3 See 134 S.Ct. 2427.
published a notice of proposed 1 See 77 FR 41051. 4 Coalition for Responsible Regulation v. EPA,
rulemaking (NPR) for the 2 CO e is defined as the mass of the specific GHG D.C. Cir., No. 09–1322, 06/26/20, judgment entered
2
Commonwealth of Virginia. In the NPR, (in tons), multiplied by its Global Warming for No. 09–1322 on 04/10/2015.
EPA proposed approval of Virginia’s Potential, as codified in 40 CFR part 98. 5 Id.
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regulations at this juncture. However, is being added to the SIP. The voluntary environmental assessment; (2)
EPA is evaluating PSD program amendments are consistent with the are prepared independently of the
submissions to assure that the state’s GHG PAL provisions of 40 CFR 52.21 as assessment process; (3) demonstrate a
program correctly addresses GHGs promulgated by EPA on July 12, 2012. clear, imminent and substantial danger
consistent with both decisions. See 77 FR 41072–41075. These to the public health or environment; or
Virginia’s currently approved PSD SIP provisions were effective in Virginia on (4) are required by law.
continues to require that PSD permits March 13, 2014. Other specific On January 12, 1998, the
(otherwise required based on emissions requirements of the May 12, 2014 SIP Commonwealth of Virginia Office of the
of pollutants other than GHGs) contain submittal and the rationale for EPA’s Attorney General provided a legal
limitations on GHG emissions based on approval are explained in the NPR and opinion that states that the Privilege
the application of BACT when sources will not be restated here. No comments law, Va. Code Sec. 10.1–1198, precludes
emit or increase GHGs in the amount of were received on the NPR. granting a privilege to documents and
75,000 tpy, measured as CO2e. Although information ‘‘required by law,’’
Virginia’s SIP may also currently III. Final Action including documents and information
contain provisions that are no longer EPA is approving VADEQ’s May 12, ‘‘required by Federal law to maintain
necessary in light of the D.C. Circuit’s 2014 SIP submittal as a revision to the program delegation, authorization or
judgment or the Supreme Court Virginia SIP. approval,’’ since Virginia must ‘‘enforce
decision, this does not prevent EPA IV. Incorporation by Reference Federally authorized environmental
from approving the submission programs in a manner that is no less
addressed in this rule. This rulemaking In this rulemaking action, EPA is stringent than their Federal counterparts
action does not add any GHG permitting finalizing regulatory text that includes . . . .’’ The opinion concludes that
requirements that are inconsistent with incorporation by reference. In ‘‘[r]egarding § 10.1–1198, therefore,
either decision. accordance with requirements of 1 CFR documents or other information needed
Likewise, the GHG PAL provisions 51.5, the EPA is finalizing the for civil or criminal enforcement under
being approved in this action include incorporation by reference of the one of these programs could not be
some provisions that may no longer be VADEQ rules regarding GHG PALs privileged because such documents and
appropriate in light of both the D.C. discussed in section II of this preamble. information are essential to pursuing
Circuit judgment and the Supreme EPA has made, and will continue to enforcement in a manner required by
Court decision. Since the Supreme make, these documents generally Federal law to maintain program
Court has determined that sources and available electronically through delegation, authorization or approval.’’
modifications may not be defined as www.regulations.gov, or they may be Virginia’s Immunity law, Va. Code
‘‘major’’ solely on the basis of the level viewed at the appropriate EPA office Sec. 10.1–1199, provides that ‘‘[t]o the
of GHGs emitted or increased, PALs for (see the ADDRESSES section of this extent consistent with requirements
GHGs may no longer have value in some preamble for more information). imposed by Federal law,’’ any person
situations where a source might have V. General Information Pertaining to making a voluntary disclosure of
triggered PSD based on GHG emissions SIP Submittals From the information to a state agency regarding
alone. However, PALs for GHGs may Commonwealth of Virginia a violation of an environmental statute,
still have a role to play in determining regulation, permit, or administrative
whether a modification that triggers PSD In 1995, Virginia adopted legislation order is granted immunity from
for a pollutant other than GHGs should that provides, subject to certain administrative or civil penalty. The
also be subject to BACT for GHGs. These conditions, for an environmental Attorney General’s January 12, 1998
provisions, like the other GHG assessment (audit) ‘‘privilege’’ for opinion states that the quoted language
provisions discussed previously, may be voluntary compliance evaluations renders this statute inapplicable to
revised at some future time. However, performed by a regulated entity. The enforcement of any Federally authorized
these provisions do not add new legislation further addresses the relative programs, since ‘‘no immunity could be
requirements for sources or burden of proof for parties either afforded from administrative, civil, or
modifications that only emit or increase asserting the privilege or seeking criminal penalties because granting
GHGs above the major source threshold disclosure of documents for which the such immunity would not be consistent
or the 75,000 tpy GHG level in 40 CFR privilege is claimed. Virginia’s with Federal law, which is one of the
52.21(b)(49)(iv). Rather, the PAL legislation also provides, subject to criteria for immunity.’’
provisions provide increased flexibility certain conditions, for a penalty waiver Therefore, EPA has determined that
to sources that wish to address their for violations of environmental laws Virginia’s Privilege and Immunity
GHG emissions in a PAL. Since this when a regulated entity discovers such statutes will not preclude the
flexibility may still be valuable to violations pursuant to a voluntary Commonwealth from enforcing its PSD
sources in at least one context described compliance evaluation and voluntarily program consistent with the Federal
above, EPA is approving these discloses such violations to the requirements. In any event, because
provisions as a revision to the Virginia Commonwealth and takes prompt and EPA has also determined that a state
SIP at this juncture. appropriate measures to remedy the audit privilege and immunity law can
violations. Virginia’s Voluntary affect only state enforcement and cannot
II. Summary of SIP Revision Environmental Assessment Privilege have any impact on Federal
The revision includes amendments to Law, Va. Code Sec. 10.1–1198, provides enforcement authorities, EPA may at
9VAC5–85: ‘‘Permits for Stationary a privilege that protects from disclosure any time invoke its authority under the
Sources of Pollutants Subject to documents and information about the CAA, including, for example, sections
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Regulation.’’ Specifically, 9VAC5–85– content of those documents that are the 113, 167, 205, 211 or 213, to enforce the
40: ‘‘Prevention of Significant product of a voluntary environmental requirements or prohibitions of the state
Deterioration Area Permit Actions,’’ and assessment. The Privilege Law does not plan, independently of any state
9VAC5–85–50: ‘‘Definitions’’ are being extend to documents or information enforcement effort. In addition, citizen
amended. Additionally, 9VAC5–85–55: that: (1) Are generated or developed enforcement under section 304 of the
‘‘Actual plantwide applicability limits,’’ before the commencement of a CAA is likewise unaffected by this, or
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![Federal Register / Vol. 80, No. 225 / Monday, November 23, 2015 / Rules and Regulations 72905
any, state audit privilege or immunity • is not subject to requirements of action must be filed in the United States
law. Section 12(d) of the National Court of Appeals for the appropriate
Technology Transfer and Advancement circuit by January 22, 2016. Filing a
VI. Statutory and Executive Order
Act of 1995 (15 U.S.C. 272 note) because petition for reconsideration by the
Reviews
application of those requirements would Administrator of this final rule does not
A. General Requirements be inconsistent with the CAA; and affect the finality of this action for the
• does not provide EPA with the purposes of judicial review nor does it
Under the CAA, the Administrator is discretionary authority to address, as extend the time within which a petition
required to approve a SIP submission appropriate, disproportionate human for judicial review may be filed, and
that complies with the provisions of the health or environmental effects, using shall not postpone the effectiveness of
CAA and applicable Federal regulations. practicable and legally permissible such rule or action. This action
42 U.S.C. 7410(k); 40 CFR 52.02(a). methods, under Executive Order 12898 pertaining to Virginia’s PSD program
Thus, in reviewing SIP submissions, (59 FR 7629, February 16, 1994). may not be challenged later in
EPA’s role is to approve state choices, The SIP is not approved to apply on proceedings to enforce its requirements.
provided that they meet the criteria of any Indian reservation land as defined (See section 307(b)(2).)
the CAA. Accordingly, this action in 18 U.S.C. 1151 or in any other area
merely approves state law as meeting where EPA or an Indian tribe has List of Subjects in 40 CFR Part 52
Federal requirements and does not demonstrated that a tribe has
impose additional requirements beyond jurisdiction. In those areas of Indian Environmental protection, Air
those imposed by state law. For that country, the rule does not have tribal pollution control, Carbon monoxide,
reason, this action: implications and will not impose Incorporation by reference,
• Is not a ‘‘significant regulatory substantial direct costs on tribal Intergovernmental relations, Nitrogen
action’’ subject to review by the Office governments or preempt tribal law as dioxide, Ozone, Particulate matter,
of Management and Budget under specified by Executive Order 13175 (65 Reporting and recordkeeping
Executive Order 12866 (58 FR 51735, FR 67249, November 9, 2000). requirements, Sulfur oxides, Volatile
October 4, 1993); organic compounds.
B. Submission to Congress and the
• does not impose an information Comptroller General
Dated: October 28, 2015.
collection burden under the provisions Shawn M. Garvin,
of the Paperwork Reduction Act (44 The Congressional Review Act, 5
Regional Administrator, Region III.
U.S.C. 3501 et seq.); U.S.C. 801 et seq., as added by the Small
• is certified as not having a Business Regulatory Enforcement 40 CFR part 52 is amended as follows:
significant economic impact on a Fairness Act of 1996, generally provides
substantial number of small entities that before a rule may take effect, the PART 52—APPROVAL AND
under the Regulatory Flexibility Act (5 agency promulgating the rule must PROMULGATION OF
U.S.C. 601 et seq.); submit a rule report, which includes a IMPLEMENTATION PLANS
copy of the rule, to each House of the
• does not contain any unfunded
Congress and to the Comptroller General ■ 1. The authority citation for part 52
mandate or significantly or uniquely
of the United States. EPA will submit a continues to read as follows:
affect small governments, as described
report containing this action and other
in the Unfunded Mandates Reform Act Authority: 42 U.S.C. 7401 et seq.
required information to the U.S. Senate,
of 1995 (Pub. L. 104–4);
the U.S. House of Representatives, and
• does not have Federalism the Comptroller General of the United
Subpart VV—Virginia
implications as specified in Executive States prior to publication of the rule in
Order 13132 (64 FR 43255, August 10, the Federal Register. A major rule ■ 2. In § 52.2420, the table in paragraph
1999); cannot take effect until 60 days after it (c) is amended by revising the entries
• is not an economically significant is published in the Federal Register. under Chapter 85 for Sections 5–85–40
regulatory action based on health or This action is not a ‘‘major rule’’ as and 5–85–50 and adding an entry for
safety risks subject to Executive Order defined by 5 U.S.C. 804(2). Section 5–85–55 to read as follows:
13045 (62 FR 19885, April 23, 1997);
C. Petitions for Judicial Review § 52.2420 Identification of plan.
• is not a significant regulatory action
subject to Executive Order 13211 (66 FR Under section 307(b)(1) of the CAA, * * * * *
28355, May 22, 2001); petitions for judicial review of this (c) * * *
EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES
Explanation
State effective
State citation Title/subject EPA approval date [former SIP
date citation]
* * * * * * *
9 VAC 5, Chapter 85 Permits for Stationary Sources of Pollutants Subject to Regulation
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* * * * * * *
Part III Prevention of Significant Deterioration Permit Actions
5–85–40 ............................ Prevention of Significant Deterioration Area Permit 03/13/14 11/23/15 [Insert Federal
Actions. Register citation].
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![72906 Federal Register / Vol. 80, No. 225 / Monday, November 23, 2015 / Rules and Regulations
EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES—Continued
Explanation
State effective
State citation Title/subject EPA approval date [former SIP
date citation]
5–85–50 ............................ Definitions .................................................................... 03/13/14 11/23/15 [Insert Federal
Register citation].
5–85–55 ............................ Actual plantwide applicability limits (PALs) ................. 03/13/14 11/23/15 [Insert Federal Added.
Register citation].
* * * * * * *
* * * * * the National Toxicology Program in FOR FURTHER INFORMATION CONTACT:
[FR Doc. 2015–29680 Filed 11–20–15; 8:45 am] their 13th Report on Carcinogens as Daniel R. Bushman, Environmental
BILLING CODE 6560–50–P ‘‘reasonably anticipated to be a human Analysis Division, Office of Information
carcinogen.’’ The EPA has determined Analysis and Access (2842T),
that 1-bromopropane meets the EPCRA Environmental Protection Agency, 1200
ENVIRONMENTAL PROTECTION section 313(d)(2)(B) criteria because it Pennsylvania Ave. NW., Washington,
AGENCY can reasonably be anticipated to cause DC 20460; telephone number: 202–566–
cancer in humans. 0743; fax number: 202–566–0677; email:
40 CFR Part 372 bushman.daniel@epa.gov, for specific
DATES: This final rule is effective
[EPA–HQ–TRI–2015–0011; FRL–9937–12– November 30, 2015, and shall apply for information on this notice. For general
OEI] the reporting year beginning January 1, information on EPCRA section 313,
RIN 2025–AA41 2016 (reports due July 1, 2017). contact the Emergency Planning and
ADDRESSES: The EPA has established a
Community Right-to-Know Hotline, toll
Addition of 1-Bromopropane; docket for this action under Docket ID free at (800) 424–9346 (select menu
Community Right-to-Know Toxic No. EPA–HQ–TRI–2015–0011. All option 3) or (703) 412–9810 in Virginia
Chemical Release Reporting documents in the docket are listed on and Alaska or toll free, TDD (800) 553–
the http://www.regulations.gov Web 7672, http://www.epa.gov/superfund/
AGENCY: Environmental Protection contacts/infocenter/.
Agency (EPA). site. Although listed in the index, some
ACTION: Final rule. information is not publicly available, SUPPLEMENTARY INFORMATION:
e.g., Confidential Business Information
SUMMARY: The Environmental Protection (CBI) or other information whose I. General Information
Agency (EPA) is adding 1- disclosure is restricted by statute. A. Does this notice apply to me?
bromopropane to the list of toxic Certain other material, such as
chemicals subject to reporting under copyrighted material, is not placed on You may be potentially affected by
section 313 of the Emergency Planning the Internet and will be publicly this action if you manufacture, process,
and Community Right-to-Know Act available only in hard copy form. or otherwise use 1-bromopropane.
(EPCRA) of 1986 and section 6607 of the Publicly available docket materials are Potentially affected categories and
Pollution Prevention Act (PPA) of 1990. available electronically through http:// entities may include, but are not limited
1-Bromopropane has been classified by www.regulations.gov. to:
Category Examples of potentially affected entities
Industry ........................................... Facilities included in the following NAICS manufacturing codes (corresponding to SIC codes 20 through
39): 311*, 312*, 313*, 314*, 315*, 316, 321, 322, 323*, 324, 325*, 326*, 327, 331, 332, 333, 334*, 335*,
336, 337*, 339*, 111998*, 211112*, 212324*, 212325*, 212393*, 212399*, 488390*, 511110, 511120,
511130, 511140*, 511191, 511199, 512220, 512230*, 519130*, 541712*, or 811490*.
*Exceptions and/or limitations exist for these NAICS codes.
Facilities included in the following NAICS codes (corresponding to SIC codes other than SIC codes 20
through 39): 212111, 212112, 212113 (correspond to SIC 12, Coal Mining (except 1241)); or 212221,
212222, 212231, 212234, 212299 (correspond to SIC 10, Metal Mining (except 1011, 1081, and 1094));
or 221111, 221112, 221113, 221118, 221121, 221122, 221330 (Limited to facilities that combust coal
and/or oil for the purpose of generating power for distribution in commerce) (corresponds to SIC 4911,
4931, and 4939, Electric Utilities); or 424690, 425110, 425120 (Limited to facilities previously classified
in SIC 5169, Chemicals and Allied Products, Not Elsewhere Classified); or 424710 (corresponds to SIC
5171, Petroleum Bulk Terminals and Plants); or 562112 (Limited to facilities primarily engaged in solvent
recovery services on a contract or fee basis (previously classified under SIC 7389, Business Services,
NEC)); or 562211, 562212, 562213, 562219, 562920 (Limited to facilities regulated under the Resource
Conservation and Recovery Act, subtitle C, 42 U.S.C. 6921 et seq.) (corresponds to SIC 4953, Refuse
Systems).
Federal Government ....................... Federal facilities.
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This table is not intended to be entities listed in the table have To determine whether your facility
exhaustive, but rather provides a guide exemptions and/or limitations regarding would be affected by this action, you
for readers regarding entities likely to be coverage, and other types of entities not should carefully examine the
affected by this action. Some of the listed in the table could also be affected. applicability criteria in part 372 subpart
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Document Created: 2018-03-01 11:18:23
Document Modified: 2018-03-01 11:18:23
| 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 | Final rule. | |
| Dates | This final rule is effective on December 23, 2015. | |
| Contact | David Talley, (215) 814-2117, or by email at [email protected] | |
| FR Citation | 80 FR 72903 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Carbon Monoxide; Incorporation by Reference; Intergovernmental Relations; Nitrogen Dioxide; Ozone; Particulate Matter; Reporting and Recordkeeping Requirements; Sulfur Oxides and Volatile Organic Compounds |
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