81 FR 10088 - Approval and Promulgation of Air Quality Implementation Plans; Virginia; Prevention of Significant Deterioration; Fine Particulate Matter
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 81, Issue 39 (February 29, 2016)
Federal Register Volume 81, Issue 39 (February 29, 2016)
| Page Range | 10088-10091 | |
| FR Document | 2016-04245 |
[Federal Register Volume 81, Number 39 (Monday, February 29, 2016)] [Rules and Regulations] [Pages 10088-10091] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-04245] ======================================================================= ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2016-0006; FRL-9942-90-Region 3] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Prevention of Significant Deterioration; Fine Particulate Matter AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the Commonwealth of Virginia State Implementation Plan (SIP) submitted by the Virginia Department of Environmental Quality (VADEQ) on behalf of the Commonwealth on July 22, 2014. VADEQ's submittal revises Virginia's Prevention of Significant Deterioration (PSD) air quality preconstruction permitting program to be consistent with the federal PSD regulations regarding the use of the significant monitoring concentration (SMC) and significant impact levels (SILs) for fine particulate matter (PM2.5 ) emissions. EPA is approving these revisions in accordance with the requirements of the Clean Air Act (CAA). DATES: This rule is effective on April 29, 2016 without further notice, unless EPA receives adverse written comment by March 30, 2016. 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 No. EPA-R03- OAR-2016-0006 at http://www.regulations.gov, or via email to [email protected]. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the ``For Further Information Contact'' section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets. FOR FURTHER INFORMATION CONTACT: Himanshu Vyas, (215) 814-2112, or by email at [email protected]. SUPPLEMENTARY INFORMATION: I. Background The CAA at section 110(a)(2)(C) requires states to develop and submit to the EPA for approval into the SIP preconstruction review and permitting programs applicable to certain new and modified stationary sources of air pollutants for attainment and nonattainment areas that cover both major and minor new sources and modifications, collectively referred to as the New Source Review (NSR) SIP. The CAA NSR SIP program is composed of three separate programs: PSD, Nonattainment New Source Review (NNSR), and Minor NSR. PSD is established in part C of title I of the CAA and applies in areas that meet the National Ambient Air Quality Standards (NAAQS)--``attainment areas,'' as well as areas where there is insufficient information to determine if the area meets the NAAQS--``unclassifiable areas.'' The NNSR SIP program is established in part D of title I of the CAA and applies in areas that are not in attainment of the NAAQS--``nonattainment areas.'' The Minor NSR SIP program addresses construction or modification activities that do not emit, or have the potential to emit, beyond certain major source thresholds, and thus do not qualify as ``major'' and applies regardless of the designation of the area in which a source is located. The EPA regulations governing the criteria that states must satisfy for EPA approval of the NSR programs as part of the SIP are contained in 40 CFR 51.160-51.166. On October 20, 2010, EPA promulgated revisions to the existing [[Page 10089]] requirements of the federal PSD permitting program as it pertains to emissions of PM2.5. \1\ As relevant here for this rulemaking, those revisions included two screening tools which outlined the extent to which certain sources were required as part of a permit application to demonstrate the impact of the proposed project on ambient air quality. A SMC was established to determine whether a PSD permit application may be exempted from the 1-year air monitoring requirement for PM2.5 based on the grounds that the increase of the pollutant is de minimis and would have a limited impact on ambient air quality. Additionally, SILs were established, below which a source was presumed to have met its statutory obligation to demonstrate that the proposed project would not cause or contribute to a violation of the NAAQS. In response to a request from EPA and a petition from a third party, the United States Court of Appeals for the District of Columbia Circuit (the Court) subsequently vacated and remanded to the EPA the portions of the 2010 PSD regulations establishing the PM2.5 SMC and SILs. Sierra Club v. EPA, 705 F.3d 458, 463-64 (D.C. Cir. 2013). As a result of this decision, EPA subsequently revised its regulations to amend the SMC for PM2.5 and to remove the SILs for PM2.5 altogether. See 78 FR 73698 (December 9, 2013).\2\ --------------------------------------------------------------------------- \1\ See ``Prevention of Significant Deterioration (PSD) for Particulate Matter less than 2.5 Micrometers (PM2.5 )-- Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC).'' 75 FR 64864 (October 20, 2010). \2\ Rather than remove the PM2.5 SMC in its entirety, EPA revised the value to zero micrograms per cubic meter ([micro]g/ m\3\) in order to be clear that there is no air quality impact level below which a permitting authority has the discretion to exempt a source from PM2.5 monitoring requirements. See 78 FR at 73699. --------------------------------------------------------------------------- Prior to the Court's decision, on August 25, 2011, VADEQ submitted a formal revision to its SIP to incorporate changes to its PM2.5 regulations in accordance with the federal PSD program in effect at that time. In light of the Court's decision, by letter dated February 13, 2013, Virginia officially withdrew from the August 25, 2011 submittal those portions of the Virginia Administrative Code (VAC) which pertained to the PM2.5 SILs and SMC. Specifically, Virginia withdrew the PM2.5 SIL regulation at paragraph A(2) of 9VAC5-80-1715 and the portion of paragraph E(1) of 9VAC5-80-1695 pertaining to the PM2.5 SMC. On February 25, 2014, EPA approved the remaining portions of VADEQ's submittal without addressing the PM2.5 SMC and SILs. See 79 FR 10377. Virginia subsequently revised the VAC to comport with EPA's December 9, 2013 rulemaking for SILs and SMC and submitted those amended regulations to EPA as a formal SIP revision on July 22, 2014. II. Summary of SIP Revision Virginia's July 22, 2014 SIP submittal consists of revisions to Virginia's PSD permitting regulations at 9VAC5-80, sections 1695 and 1715 to reflect federal requirements relating to PM2.5 SMC and SILs. Specifically, 9VAC5-80-1695E(1) establishes a SMC of 0 [micro]g/m\3\ of PM2.5 , and expressly states that no exemption from monitoring is available with regard to PM2.5 . As previously discussed, VADEQ's PM2.5 SILs provision, formerly codified at 9VAC5-80-1715A(2) was never approved by EPA into Virginia's SIP and was subsequently removed by Virginia from the VAC. Therefore, this approval action does not include a substantive revision to 9VAC5-80-1715A. Rather, EPA's action involves approval of Virginia's administrative recodification, necessitated by the Commonwealth's revision of state regulations (i.e., the removal of the SILs from 9VAC5-80-1715). The Virginia regulations, 9VAC5-80, sections 1695 and 1715, are consistent with federal PSD requirements for PM2.5 in the CAA and its implementing regulations, including specifically 40 CFR 51.166, and were effective in Virginia on June 4, 2014. III. Final Action EPA is approving VADEQ's July 22, 2014 SIP submittal, including revised provisions of the VAC, 9VAC5-80, sections 1695 and 1715, as a revision to the Virginia SIP because the revision meets CAA requirements in the CAA and its implementing regulations. 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 April 29, 2016 without further notice unless EPA receives adverse comment by March 30, 2016. 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. IV. 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. [[Page 10090]] 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. V. Incorporation by Reference In this rulemaking action, the 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 VADEQ rules regarding PM2.5 SILs and SMC discussed in Section III of this preamble. The EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or may be viewed at the appropriate EPA office (see the ADDRESSES section of this preamble for more information). 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 April 29, 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. 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 requirements for PM 2.5 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: February 12, 2016. 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: [[Page 10091]] 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 80 for Sections 5-80-1695 and 5-80-1715 to read as follows: Sec. 52.2420 Identification of plan. * * * * * (c) * * * EPA-Approved Virginia Regulations and Statutes ---------------------------------------------------------------------------------------------------------------- State State citation Title/Subject effective EPA Approval date Explanation [former 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 ---------------------------------------------------------------------------------------------------------------- * * * * * * * 5-80-1695...................... Exemptions........ 6/4/14 2/29/16 [Insert Revised paragraph E(1) Federal Register to add value for Citation]. PM2.5. Limited approval remains in effect. * * * * * * * 5-80-1715...................... Source impact 6/4/14 2/29/16 [Insert Revised paragraph A. analysis. Federal Register Limited approval Citation]. remains in effect. * * * * * * * ---------------------------------------------------------------------------------------------------------------- * * * * * [FR Doc. 2016-04245 Filed 2-26-16; 8:45 am] BILLING CODE 6560-50-P
![10088 Federal Register / Vol. 81, No. 39 / Monday, February 29, 2016 / Rules and Regulations
PART 334—DANGER ZONE AND Dated: February 17, 2016. or other information whose disclosure is
RESTRICTED AREA REGULATIONS Edward E. Belk, Jr., restricted by statute. Multimedia
Chief, Operations and Regulatory Division, submissions (audio, video, etc.) must be
■ 1. The authority citation for 33 CFR Directorate of Civil Works. accompanied by a written comment.
part 334 continues to read as follows: [FR Doc. 2016–04215 Filed 2–26–16; 8:45 am] The written comment is considered the
Authority: 40 Stat. 266 (33 U.S.C. 1) and BILLING CODE 3720–58–P official comment and should include
40 Stat. 892 (33 U.S.C. 3). discussion of all points you wish to
make. The EPA will generally not
■ 2. Add § 334.405 to read as follows: ENVIRONMENTAL PROTECTION consider comments or comment
AGENCY contents located outside of the primary
§ 334.405 South of entrance to
submission (i.e. on the web, cloud, or
Chesapeake Bay off Camp Pendleton,
Virginia; firing range. 40 CFR Part 52 other file sharing system). For
additional submission methods, please
(a) The danger zone. An area directly [EPA–R03–OAR–2016–0006; FRL–9942–90–
Region 3]
contact the person identified in the ‘‘For
from Camp Pendleton extending Further Information Contact’’ section.
offshore as denied by lines drawn as Approval and Promulgation of Air For the full EPA public comment policy,
follows: Beginning at latitude 36°49′00″ Quality Implementation Plans; Virginia; information about CBI or multimedia
N., longitude 75°58′04″ W.; thence to Prevention of Significant Deterioration; submissions, and general guidance on
latitude 36°49′19″ N., longitude Fine Particulate Matter making effective comments, please visit
75°57′41″ W.; thence to latitude http://www2.epa.gov/dockets/
36°49′21″ N., longitude 75°57′32″ W.; AGENCY: Environmental Protection commenting-epa-dockets.
thence to latitude 36°49′13″ N., Agency (EPA). FOR FURTHER INFORMATION CONTACT:
longitude 75°56′44″ W.; thence to ACTION: Direct final rule. Himanshu Vyas, (215) 814–2112, or by
latitude 36°49′22″ N., longitude email at vyas.himanshu@epa.gov.
75°55′48″ W.; thence to latitude SUMMARY: The Environmental Protection
Agency (EPA) is taking direct final SUPPLEMENTARY INFORMATION:
36°49′12″ N., longitude 75°55′46″ W.;
thence to latitude 36°49′02″ N., action to approve revisions to the I. Background
longitude 75°55′45″ W.; thence to Commonwealth of Virginia State
Implementation Plan (SIP) submitted by The CAA at section 110(a)(2)(C)
latitude 36°48′52″ N., longitude requires states to develop and submit to
75°55′45″ W.; thence to latitude the Virginia Department of
Environmental Quality (VADEQ) on the EPA for approval into the SIP
36°48′54″ N., longitude 75°56′42″ W.; preconstruction review and permitting
thence to latitude 36°48′41″ N., behalf of the Commonwealth on July 22,
2014. VADEQ’s submittal revises programs applicable to certain new and
longitude 75°57′28″ W.; thence to modified stationary sources of air
latitude 36°48′41″ N., longitude Virginia’s Prevention of Significant
Deterioration (PSD) air quality pollutants for attainment and
75°57′37″ W.; thence to latitude nonattainment areas that cover both
36°48′57″ N., longitude 75°58′04″ W. preconstruction permitting program to
be consistent with the federal PSD major and minor new sources and
The datum for these coordinates is modifications, collectively referred to as
WGS84. regulations regarding the use of the
significant monitoring concentration the New Source Review (NSR) SIP. The
(b) The regulations. (1) Persons and CAA NSR SIP program is composed of
vessels shall proceed through the area (SMC) and significant impact levels
(SILs) for fine particulate matter (PM2.5) three separate programs: PSD,
with caution and shall remain therein Nonattainment New Source Review
no longer than necessary for purpose of emissions. EPA is approving these
revisions in accordance with the (NNSR), and Minor NSR. PSD is
transit. established in part C of title I of the
requirements of the Clean Air Act
(2) When firing is in progress during (CAA). CAA and applies in areas that meet the
daylight hours, red flags will be National Ambient Air Quality Standards
displayed at conspicuous locations on DATES: This rule is effective on April 29, (NAAQS)—‘‘attainment areas,’’ as well
the beach. No firing will be done during 2016 without further notice, unless EPA as areas where there is insufficient
the hours of darkness or low visibility. receives adverse written comment by information to determine if the area
March 30, 2016. If EPA receives such meets the NAAQS—‘‘unclassifiable
(3) Firing on the ranges shall be
comments, it will publish a timely areas.’’ The NNSR SIP program is
suspended as long as any persons or
withdrawal of the direct final rule in the established in part D of title I of the
vessels are within the danger zone.
Federal Register and inform the public CAA and applies in areas that are not in
(4) Lookout posts shall be manned by that the rule will not take effect. attainment of the NAAQS—
the activity or agency operating the
ADDRESSES: Submit your comments, ‘‘nonattainment areas.’’ The Minor NSR
firing range State Military Reservation,
identified by Docket ID No. EPA–R03– SIP program addresses construction or
Camp Pendleton.
OAR–2016–0006 at http:// modification activities that do not emit,
(5) There shall be no firing on the www.regulations.gov, or via email to or have the potential to emit, beyond
range during periods of low visibility johansen.amy@epa.gov. For comments certain major source thresholds, and
which would prevent the recognition of submitted at Regulations.gov, follow the thus do not qualify as ‘‘major’’ and
a vessel (to a distance of 7,500 yards) online instructions for submitting applies regardless of the designation of
asabaliauskas on DSK5VPTVN1PROD with RULES
which is property displaying navigation comments. Once submitted, comments the area in which a source is located.
lights, or which would preclude a vessel cannot be edited or removed from The EPA regulations governing the
from observing the red range flags or Regulations.gov. For either manner of criteria that states must satisfy for EPA
lights. submission, the EPA may publish any approval of the NSR programs as part of
(c) Enforcement. The regulations in comment received to its public docket. the SIP are contained in 40 CFR 51.160–
this section shall be enforced by the Do not submit electronically any 51.166.
Adjutant General of Virginia, and such information you consider to be On October 20, 2010, EPA
agencies as he or she may designate. Confidential Business Information (CBI) promulgated revisions to the existing
VerDate Sep<11>2014 16:24 Feb 26, 2016 Jkt 238001 PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 E:\FR\FM\29FER1.SGM 29FER1](https://thefederalregister.org/doc/81_FR_10127/page/1.svg)
![Federal Register / Vol. 81, No. 39 / Monday, February 29, 2016 / Rules and Regulations 10089
requirements of the federal PSD Virginia subsequently revised the VAC interested in commenting must do so at
permitting program as it pertains to to comport with EPA’s December 9, this time.
emissions of PM2.5.1 As relevant here for 2013 rulemaking for SILs and SMC and
IV. General Information Pertaining to
this rulemaking, those revisions submitted those amended regulations to
SIP Submittals From the
included two screening tools which EPA as a formal SIP revision on July 22, Commonwealth of Virginia
outlined the extent to which certain 2014.
sources were required as part of a In 1995, Virginia adopted legislation
permit application to demonstrate the II. Summary of SIP Revision that provides, subject to certain
impact of the proposed project on Virginia’s July 22, 2014 SIP submittal conditions, for an environmental
ambient air quality. A SMC was consists of revisions to Virginia’s PSD assessment (audit) ‘‘privilege’’ for
established to determine whether a PSD permitting regulations at 9VAC5–80, voluntary compliance evaluations
permit application may be exempted sections 1695 and 1715 to reflect federal performed by a regulated entity. The
from the 1-year air monitoring requirements relating to PM2.5 SMC and legislation further addresses the relative
requirement for PM2.5 based on the SILs. Specifically, 9VAC5–80–1695E(1) burden of proof for parties either
grounds that the increase of the establishes a SMC of 0 mg/m3 of PM2.5, asserting the privilege or seeking
pollutant is de minimis and would have and expressly states that no exemption disclosure of documents for which the
a limited impact on ambient air quality. from monitoring is available with regard privilege is claimed. Virginia’s
Additionally, SILs were established, to PM2.5. As previously discussed, legislation also provides, subject to
below which a source was presumed to certain conditions, for a penalty waiver
VADEQ’s PM2.5 SILs provision, formerly
have met its statutory obligation to for violations of environmental laws
codified at 9VAC5–80–1715A(2) was
demonstrate that the proposed project when a regulated entity discovers such
never approved by EPA into Virginia’s
would not cause or contribute to a violations pursuant to a voluntary
SIP and was subsequently removed by
violation of the NAAQS. In response to compliance evaluation and voluntarily
Virginia from the VAC. Therefore, this
a request from EPA and a petition from discloses such violations to the
approval action does not include a
a third party, the United States Court of Commonwealth and takes prompt and
substantive revision to 9VAC5–80–
Appeals for the District of Columbia appropriate measures to remedy the
1715A. Rather, EPA’s action involves
Circuit (the Court) subsequently vacated violations. Virginia’s Voluntary
approval of Virginia’s administrative
and remanded to the EPA the portions Environmental Assessment Privilege
recodification, necessitated by the Law, Va. Code Sec. 10.1–1198, provides
of the 2010 PSD regulations establishing Commonwealth’s revision of state
the PM2.5 SMC and SILs. Sierra Club v. a privilege that protects from disclosure
regulations (i.e., the removal of the SILs documents and information about the
EPA, 705 F.3d 458, 463–64 (D.C. Cir. from 9VAC5–80–1715). The Virginia
2013). As a result of this decision, EPA content of those documents that are the
regulations, 9VAC5–80, sections 1695 product of a voluntary environmental
subsequently revised its regulations to and 1715, are consistent with federal
amend the SMC for PM2.5 and to remove assessment. The Privilege Law does not
PSD requirements for PM2.5 in the CAA extend to documents or information
the SILs for PM2.5 altogether. See 78 FR and its implementing regulations,
73698 (December 9, 2013).2 that: (1) Are generated or developed
including specifically 40 CFR 51.166, before the commencement of a
Prior to the Court’s decision, on
and were effective in Virginia on June voluntary environmental assessment; (2)
August 25, 2011, VADEQ submitted a
4, 2014. are prepared independently of the
formal revision to its SIP to incorporate
changes to its PM2.5 regulations in III. Final Action assessment process; (3) demonstrate a
accordance with the federal PSD clear, imminent and substantial danger
program in effect at that time. In light EPA is approving VADEQ’s July 22, to the public health or environment; or
of the Court’s decision, by letter dated 2014 SIP submittal, including revised (4) are required by law.
February 13, 2013, Virginia officially provisions of the VAC, 9VAC5–80, On January 12, 1998, the
withdrew from the August 25, 2011 sections 1695 and 1715, as a revision to Commonwealth of Virginia Office of the
submittal those portions of the Virginia the Virginia SIP because the revision Attorney General provided a legal
Administrative Code (VAC) which meets CAA requirements in the CAA opinion that states that the Privilege
pertained to the PM2.5 SILs and SMC. and its implementing regulations. EPA Law, Va. Code Sec. 10.1–1198,
Specifically, Virginia withdrew the is publishing this rule without prior precludes granting a privilege to
PM2.5 SIL regulation at paragraph A(2) proposal because EPA views this as a documents and information ‘‘required
of 9VAC5–80–1715 and the portion of noncontroversial amendment and by law,’’ including documents and
paragraph E(1) of 9VAC5–80–1695 anticipates no adverse comment. information ‘‘required by Federal law to
pertaining to the PM2.5 SMC. On However, in the ‘‘Proposed Rules’’ maintain program delegation,
February 25, 2014, EPA approved the section of this Federal Register, EPA is authorization or approval,’’ since
remaining portions of VADEQ’s publishing a separate document that Virginia must ‘‘enforce Federally
submittal without addressing the PM2.5 will serve as the proposal to approve the authorized environmental programs in a
SMC and SILs. See 79 FR 10377. SIP revision if adverse comments are manner that is no less stringent than
filed. This rule will be effective on April their Federal counterparts. . . .’’ The
1 See ‘‘Prevention of Significant Deterioration 29, 2016 without further notice unless opinion concludes that ‘‘[r]egarding
(PSD) for Particulate Matter less than 2.5 EPA receives adverse comment by § 10.1–1198, therefore, documents or
Micrometers (PM2.5)—Increments, Significant March 30, 2016. If EPA receives adverse other information needed for civil or
asabaliauskas on DSK5VPTVN1PROD with RULES
Impact Levels (SILs) and Significant Monitoring comment, EPA will publish a timely criminal enforcement under one of these
Concentration (SMC).’’ 75 FR 64864 (October 20,
2010). withdrawal in the Federal Register programs could not be privileged
2 Rather than remove the PM
2.5 SMC in its
informing the public that the rule will because such documents and
entirety, EPA revised the value to zero micrograms not take effect. EPA will address all information are essential to pursuing
per cubic meter (mg/m3) in order to be clear that public comments in a subsequent final enforcement in a manner required by
there is no air quality impact level below which a
permitting authority has the discretion to exempt a
rule based on the proposed rule. EPA Federal law to maintain program
source from PM2.5 monitoring requirements. See 78 will not institute a second comment delegation, authorization or approval.’’
FR at 73699. period on this action. Any parties Virginia’s Immunity law, Va. Code Sec.
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![10090 Federal Register / Vol. 81, No. 39 / Monday, February 29, 2016 / Rules and Regulations
10.1–1199, provides that ‘‘[t]o the extent provided that they meet the criteria of that before a rule may take effect, the
consistent with requirements imposed the CAA. Accordingly, this action agency promulgating the rule must
by Federal law,’’ any person making a merely approves state law as meeting submit a rule report, which includes a
voluntary disclosure of information to a Federal requirements and does not copy of the rule, to each House of the
state agency regarding a violation of an impose additional requirements beyond Congress and to the Comptroller General
environmental statute, regulation, those imposed by state law. For that of the United States. EPA will submit a
permit, or administrative order is reason, this action: report containing this action and other
granted immunity from administrative • Is not a ‘‘significant regulatory required information to the U.S. Senate,
or civil penalty. The Attorney General’s action’’ subject to review by the Office the U.S. House of Representatives, and
January 12, 1998 opinion states that the of Management and Budget under the Comptroller General of the United
quoted language renders this statute Executive Order 12866 (58 FR 51735, States prior to publication of the rule in
inapplicable to enforcement of any October 4, 1993); the Federal Register. A major rule
federally authorized programs, since • does not impose an information cannot take effect until 60 days after it
‘‘no immunity could be afforded from collection burden under the provisions is published in the Federal Register.
administrative, civil, or criminal of the Paperwork Reduction Act (44 This action is not a ‘‘major rule’’ as
penalties because granting such U.S.C. 3501 et seq.); defined by 5 U.S.C. 804(2).
immunity would not be consistent with • is certified as not having a
significant economic impact on a C. Petitions for Judicial Review
Federal law, which is one of the criteria
for immunity.’’ substantial number of small entities Under section 307(b)(1) of the CAA,
Therefore, EPA has determined that under the Regulatory Flexibility Act (5 petitions for judicial review of this
Virginia’s Privilege and Immunity U.S.C. 601 et seq.); action must be filed in the United States
statutes will not preclude the • does not contain any unfunded Court of Appeals for the appropriate
Commonwealth from enforcing its PSD mandate or significantly or uniquely circuit by April 29, 2016. Filing a
program consistent with the Federal affect small governments, as described petition for reconsideration by the
requirements. In any event, because in the Unfunded Mandates Reform Act Administrator of this final rule does not
EPA has also determined that a state of 1995 (Pub. L. 104–4); affect the finality of this action for the
audit privilege and immunity law can • does not have Federalism purposes of judicial review nor does it
affect only state enforcement and cannot implications as specified in Executive extend the time within which a petition
have any impact on Federal Order 13132 (64 FR 43255, August 10, for judicial review may be filed, and
enforcement authorities, EPA may at 1999); shall not postpone the effectiveness of
any time invoke its authority under the • is not an economically significant such rule or action. Parties with
CAA, including, for example, sections regulatory action based on health or objections to this direct final rule are
113, 167, 205, 211 or 213, to enforce the safety risks subject to Executive Order encouraged to file a comment in
requirements or prohibitions of the state 13045 (62 FR 19885, April 23, 1997); response to the parallel notice of
plan, independently of any state • is not a significant regulatory action proposed rulemaking for this action
enforcement effort. In addition, citizen subject to Executive Order 13211 (66 FR published in the proposed rules section
enforcement under section 304 of the 28355, May 22, 2001); of this Federal Register, rather than file
• is not subject to requirements of
CAA is likewise unaffected by this, or an immediate petition for judicial
Section 12(d) of the National
any, state audit privilege or immunity review of this direct final rule, so that
Technology Transfer and Advancement
law. EPA can withdraw this direct final rule
Act of 1995 (15 U.S.C. 272 note) because
and address the comment in the
V. Incorporation by Reference application of those requirements would
proposed rulemaking action.
In this rulemaking action, the EPA is be inconsistent with the CAA; and
• does not provide EPA with the This action pertaining to Virginia’s
finalizing regulatory text that includes PSD requirements for PM2.5 may not be
incorporation by reference. In discretionary authority to address, as
appropriate, disproportionate human challenged later in proceedings to
accordance with requirements of 1 CFR enforce its requirements. (See section
51.5, the EPA is finalizing the health or environmental effects, using
practicable and legally permissible 307(b)(2).)
incorporation by reference of VADEQ
rules regarding PM2.5 SILs and SMC methods, under Executive Order 12898 List of Subjects in 40 CFR Part 52
discussed in Section III of this (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on Environmental protection, Air
preamble. The EPA has made, and will pollution control, Carbon monoxide,
any Indian reservation land as defined
continue to make, these documents Incorporation by reference,
in 18 U.S.C. 1151 or in any other area
generally available electronically Intergovernmental relations, Lead,
where EPA or an Indian tribe has
through www.regulations.gov and/or Nitrogen dioxide, Ozone, Particulate
demonstrated that a tribe has
may be viewed at the appropriate EPA matter, Reporting and recordkeeping
jurisdiction. In those areas of Indian
office (see the ADDRESSES section of this requirements, Sulfur oxides, Volatile
country, the rule does not have tribal
preamble for more information). organic compounds.
implications and will not impose
VI. Statutory and Executive Order substantial direct costs on tribal Dated: February 12, 2016.
Reviews governments or preempt tribal law as Shawn M. Garvin,
specified by Executive Order 13175 (65 Regional Administrator, Region III.
A. General Requirements
asabaliauskas on DSK5VPTVN1PROD with RULES
FR 67249, November 9, 2000). 40 CFR part 52 is amended as follows:
Under the CAA, the Administrator is
required to approve a SIP submission B. Submission to Congress and the
PART 52—APPROVAL AND
that complies with the provisions of the Comptroller General
PROMULGATION OF
CAA and applicable Federal regulations. The Congressional Review Act, 5 IMPLEMENTATION PLANS
42 U.S.C. 7410(k); 40 CFR 52.02(a). U.S.C. 801 et seq., as added by the Small
Thus, in reviewing SIP submissions, Business Regulatory Enforcement ■ 1. The authority citation for part 52
EPA’s role is to approve state choices, Fairness Act of 1996, generally provides continues to read as follows:
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![Federal Register / Vol. 81, No. 39 / Monday, February 29, 2016 / Rules and Regulations 10091
Authority: 42 U.S.C. 7401 et seq. under Chapter 80 for Sections 5–80– (c) * * *
1695 and 5–80–1715 to read as follows:
Subpart VV—Virginia
§ 52.2420 Identification of plan.
■ 2. In § 52.2420, the table in paragraph
(c) is amended by revising the entries * * * * *
EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES
State Explanation
State citation Title/Subject effective EPA Approval date [former SIP citation]
date
* * * * * * *
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
* * * * * * *
5–80–1695 ..................... Exemptions .................. 6/4/14 2/29/16 [Insert Federal Revised paragraph E(1) to add value for PM2.5.
Register Citation]. Limited approval remains in effect.
* * * * * * *
5–80–1715 ..................... Source impact analysis 6/4/14 2/29/16 [Insert Federal Revised paragraph A. Limited approval remains
Register Citation]. in effect.
* * * * * * *
* * * * * DATES: These regulations are effective IV. Collection of Information Requirements
[FR Doc. 2016–04245 Filed 2–26–16; 8:45 am] on January 1, 2017. V. Regulatory Impact Statement
A. Overall Impact
BILLING CODE 6560–50–P FOR FURTHER INFORMATION CONTACT:
B. Unfunded Mandates Reform Act
Christopher Truffer, (410) 786–1264; or C. Regulatory Flexibility Act
Stephanie Kaminsky (410) 786–4653. D. Federalism
DEPARTMENT OF HEALTH AND SUPPLEMENTARY INFORMATION:
Acronyms
HUMAN SERVICES Table of Contents
To assist the reader, the following
Centers for Medicare & Medicaid I. Background acronyms are used in this document.
II. Summary of Proposed Provisions and
Services DAV Change in Actuarial Value
Analysis of and Responses to Public
Comments on the Proposed Methodology APTC Advance payment of the premium
42 CFR Part 600 A. Background tax credit
B. Overview of the Funding Methodology ARP Adjusted reference premium
[CMS–2396–FN] and Calculation of the Payment Amount AV Actuarial value
C. Required Rate Cells BHP Basic Health Program
RIN 0938–ZB21 D. Sources and State Data Considerations CCIIO CMS’ Center for Consumer
E. Discussion of Specific Variables Used in Information and Insurance Oversight
Basic Health Program; Federal Payment Equations CDC Centers for Disease Control and
F. Adjustments for American Indians and Prevention
Funding Methodology for Program CHIP Children’s Health Insurance Program
Years 2017 and 2018 Alaska Natives
G. State Option To Use 2016 or 2017 QHP CPI–U Consumer price index for all urban
AGENCY: Centers for Medicare & Premiums for BHP Payments consumers
H. State Option To Include Retrospective CSR Cost-sharing reduction
Medicaid Services (CMS), HHS. EHB Essential Health Benefit
State-Specific Health Risk Adjustment in
ACTION: Final methodology. Certified Methodology FPL Federal poverty line
III. Provisions of the Final Methodology FRAC Factor for removing administrative
SUMMARY: This document provides the A. Overview of the Funding Methodology costs
methodology and data sources necessary and Calculation of the Payment Amount IRF Income reconciliation factor
to determine Federal payment amounts B. Federal BHP Payment Rate Cells IRS Internal Revenue Service
made in program years 2017 and 2018 C. Sources and State Data Considerations IUF Induced utilization factor
asabaliauskas on DSK5VPTVN1PROD with RULES
to states that elect to establish a Basic D. Discussion of Specific Variables Used in QHP Qualified health plan
Health Program under the Affordable Payment Equations OTA Office of Tax Analysis [of the U.S.
Care Act to offer health benefits E. Adjustments for American Indians and Department of Treasury]
Alaska Natives PHF Population health factor
coverage to low-income individuals F. State Option To Use 2016 or 2017 QHP PTC Premium tax credit
otherwise eligible to purchase coverage Premiums for BHP Payments PTCF Premium tax credit formula
through Affordable Insurance Exchanges G. State Option To Include Retrospective PTF Premium trend factor
(hereinafter referred to as the State-Specific Health Risk Adjustment in RP Reference premium
Exchanges). Certified Methodology SBE State Based Exchange
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Document Created: 2016-02-27 02:04:54
Document Modified: 2016-02-27 02:04:54
| 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 April 29, 2016 without further notice, unless EPA receives adverse written comment by March 30, 2016. 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 | Himanshu Vyas, (215) 814-2112, or by email at [email protected] | |
| FR Citation | 81 FR 10088 | |
| 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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