81 FR 56508 - Approval and Promulgation of Air Quality Implementation Plans; Virginia; Minor New Source Review Requirements
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 81, Issue 162 (August 22, 2016)
Federal Register Volume 81, Issue 162 (August 22, 2016)
| Page Range | 56508-56512 | |
| FR Document | 2016-19770 |
[Federal Register Volume 81, Number 162 (Monday, August 22, 2016)] [Rules and Regulations] [Pages 56508-56512] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-19770] [[Page 56508]] ======================================================================= ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2015-0642; FRL-9950-91-Region 3] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Minor New Source Review Requirements 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). These revisions pertain to preconstruction permitting requirements under Virginia's minor New Source Review (NSR) program. EPA is approving these revisions to the Virginia SIP in accordance with the requirements of the Clean Air Act (CAA). DATES: This rule is effective on October 21, 2016 without further notice, unless EPA receives adverse written comment by September 21, 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-2015-0642 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: David Talley, (215) 814-2117, or by email at [email protected]. SUPPLEMENTARY INFORMATION: I. Background On July 15, 2013, the Commonwealth of Virginia submitted a formal revision to its SIP. The SIP revision consists of amendments to the Virginia Department of Environmental Quality's (VADEQ) minor New Source Review (NSR) program, as well as a complete recodification of those regulations. On July 24, 1996, EPA took final action to approve in part and disapprove in part a revision to the Virginia SIP relating to minor NSR permitting requirements. See 61 FR 38388. EPA disapproved revisions to the public participation requirements which were, at the time, codified at Virginia Regulations (VR) section 120-08-1. Specifically, EPA disapproved sections 120-08-01G.1 and .01G.4.b because they purported to exempt major modifications of less than 100 tons per year (tpy) from the prescribed public participation procedures, contrary to the requirements of 40 CFR 51.161. This left the previously approved SIP requirements of VR section 120-08-01C.4 in place to govern public participation. EPA approved the remainder of the submittal into Virginia's SIP. Subsequently, on April 21, 2000, EPA took final action to approve a revision to the Virginia SIP which did not revise any of the substantive requirements, but included in the SIP Virginia's reorganized and recodified regulations from the VR-120-08-01 format to match the Virginia Administrative Code (VAC) format (e.g., 9VAC5-80- 10). See 78 FR 21315. II. Summary of SIP Revision and EPA Analysis Virginia's July 15, 2013 submittal encompasses a number of revisions to Virginia's regulations that were completed at the Commonwealth level, but not submitted to and approved by EPA as revisions to the Virginia SIP. VADEQ compiled the various revisions and submitted them so that EPA could review the program as a whole. A thorough discussion of the details of the regulatory changes made by Virginia as well as EPA's analysis of those changes to the regulations and the Virginia SIP are located in the technical support document (TSD) in the docket for this action, available at www.regulations.gov, and will not be restated here. Among those revisions was the evolution and recodification of VADEQ's minor NSR program from 9VAC5 Chapter 80 sections 10 and 11 to Article 6 of Part II of 9VAC5 Chapter 80. Sections 10 and 11 of 9VAC5- 80 are being removed from the SIP and replaced as part of this action. Additionally, the submittal includes revisions to 9VAC5-50, sections 240, 250, and 260. The submittal also includes revisions to the requirements for public participation under Article 6 which correct the deficiencies which were the reason for EPA's previously-mentioned July 24, 1996 disapproval action. 9VAC5-50-240 has been revised to maintain consistency with revisions in the new Article 6; to clarify which emissions units are subject to the minor NSR regulations; and to appropriately exempt hazardous air pollutants (HAPs) regulated under 9VAC5-60, consistent with 40 CFR 51.166. Additionally, a number of revisions have been made to the best available control technology (BACT) requirements under Virginia's minor NSR program. The definition of BACT under 9VAC5-50-250 has been revised to provide for the consideration of additional factors in determining BACT (e.g., nature and amount of emissions, control efficiencies across industry source types, etc.). 9VAC5-50-260 has been revised to require BACT determinations for all emissions units subject to the minor NSR program, and to require that, for phased construction projects, BACT must be reviewed within 18 months of construction of each individual phase. 9VAC5-50-260 has also been revised to require BACT for all emissions units which are subject to the minor NSR program. These changes to 9VAC5-50 have been made in order to simplify the minor NSR program, and are appropriate and meet the federal requirements of 40 CFR 51.160 and 51.161, and CAA section 110(a)(2)(C). Additionally, the revisions are in accordance with section 110(l) of the CAA because they will not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable CAA requirement. Generally, the new Article 6 regulations represent a recodification of the minor NSR program from section 10 and 11 of 9VAC5-80. Sections 10 and 11 are being deleted from the SIP because they are largely duplicative with the new provisions. In addition, the deficiency related to the public participation requirements identified in [[Page 56509]] EPA's 1996 disapproval action has been corrected. Therefore, the previously approved public participation requirements under VR 120-08- 01 are being removed from the SIP as well. Additionally, as discussed in more detail below, the revisions include new regulations designed to confer federal enforceability upon Virginia's program for regulating HAPs (consistent with 40 CFR parts 61 and 63) and the removal of provisions which were inadvertently included in the SIP by EPA's 1996 approval, and which inappropriately conferred federal enforceability upon Virginia's state-only enforceable provisions for regulating toxic air pollutants. Virginia's definition of ``toxic air pollutant'' is more broad than the federal ``hazardous air pollutant,'' and by inadvertently applying the minor NSR program to the former, Virginia's SIP went beyond what VADEQ intended. Specifically, the requirements of sections 1100I, 1105F, and 1170A are being added, and paragraph 1200B is being deleted from the SIP. These revisions are appropriate and meet the federal requirements of 40 CFR 51.160 and 51.161, and CAA section 110(a)(2)(C). Additionally, the revisions (and in particular the deletions) are in accordance with section 110(l) of the CAA because they will not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable CAA requirement. The unit reconstruction requirements of 9VAC5-80-1100 have been revised to evaluate applicability for the reconstruction of an emissions unit via the replacement of some of its components in the same manner as any other modification. Additionally, provisions have been added to allow sources to opt into permit review, and to clarify applicability of fugitive emissions. Provisions have been added to sections 80-1100M, 1105C and D, and 1100C to regulate fine particulate matter with an aerodynamic diameter less than 2.5 micrometers (PM2.5 ) in a manner consistent with federal requirements, particularly related to the condensable fraction of PM2.5 . 9VAC5-80-1105 contains the exemptions formerly codified at section 80-11. Many of the revisions to these exemptions are administrative or clarifying in nature. However, there are some additions and deletions as well. New exemptions include, but are not limited to, those for mulch recycling operations, replacement units where the potential to emit (PTE) does not increase, engines and turbines which do not exceed 500 hours per year of operation, and exhaust flares at natural gas and coal bed methane extraction wells. Additionally, the emission-rate based exemption for VOC coating operations, and the provisions which prohibit the exemption of certain New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAP) sources have been deleted. Exemption thresholds for PM2.5 have been added, below which minor NSR will not apply. The new (and existing) exemptions exist because VADEQ considers the associated emissions to be de minimis, and not worth the administrative effort required to issue permits for de minimis emissions. As a safeguard, however, provisions have been added to state that any exemption from the minor NSR requirements does not create an exemption from major NSR. All such sources would be considered emissions sources for purposes of determining major source status under Virginia's SIP approved major NSR program. The definitions under 9VAC5-80-1110 have been revised to make the minor NSR program more compatible with the major NSR program. Additional revisions of note include: The addition of provisions for ensuring that permit terms relating to emissions caps are practically enforceable (9VAC5-80-1180B, C, and D); criteria relating to invalidation of permits due to delays in construction (9VAC5-80-1210B); criteria for issuance of general permits (9VAC5-80-1250); provisions relating to permit modifications (9VAC5-80-1260 through 1300); as well as several non-substantive, clarifying revisions. All of the new and revised provisions of 9VAC5-80 Article 6 meet the federal requirements of 40 CFR 51.160 and 51.161, and CAA section 110(a)(2)(C). Additionally, the revisions (and in particular the deletions) are in accordance with section 110(l) of the CAA because they will not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable CAA requirement as EPA finds Virginia's conclusions regarding de minimis emissions reasonable. Additional details regarding Virginia's amended regulations for its minor NSR program and EPA's detailed analysis of those regulations for the Virginia SIP are located in the TSD in the docket for this action, available at www.regulations.gov, and will not be restated here. III. Final Action EPA is approving Virginia's July 15, 2013 submittal as a revision to the Virginia SIP because it meets the federal requirements of 40 CFR 51.160 and 51.161, and CAA section 110(a)(2)(C). Additionally, the revisions (and in particular the deletions) are in accordance with section 110(l) of the CAA because they will not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable CAA requirement given de minimus emissions impacts and removal of duplicative measures. 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 October 21, 2016 without further notice unless EPA receives adverse comment by September 21, 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 [[Page 56510]] 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 NSR program consistent with the federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law. V. 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 Virginia regulations as described in the amendments to 40 CFR part 52 set forth below. Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update of the SIP compilation.\1\ 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). --------------------------------------------------------------------------- \1\ 62 FR 27968 (May 22, 1997). --------------------------------------------------------------------------- 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 Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011); does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4); does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). B. Submission to Congress and the Comptroller General The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ``major rule'' as defined by 5 U.S.C. 804(2). C. Petitions for Judicial Review Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 21, 2016. Filing a petition for reconsideration by the [[Page 56511]] 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 minor NSR program may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Dated: August 9, 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: 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: 0 a. Removing the section entitled ``9VAC5, Chapter 80 Permits for Stationary Sources [Part VIII]'' including the entries for Sections 5- 80-10, 10A through 10P, VR120-08-01C.4.b and .01C.4.c, and 5-80-11; 0 b. Revising the entries for Sections 5-50-240, 5-50-250, and 5-50-260; 0 c. Adding the heading ``Article 6--Permits for New and Modified Stationary Sources'' and entries for Sections 5-80-1100 through 5-80- 1300 immediately following the entry for 5-80-1040. The revisions and additions read as follows: Sec. 52.2420 Identification of plan. * * * * * (c) * * * EPA-Approved Virginia Regulations and Statutes ---------------------------------------------------------------------------------------------------------------- State Explanation [former SIP State citation Title/Subject effective date EPA Approval date citation] ---------------------------------------------------------------------------------------------------------------- * * * * * * * ---------------------------------------------------------------------------------------------------------------- 9 VAC 5, Chapter 50 New and Modified Stationary Sources [Part V] ---------------------------------------------------------------------------------------------------------------- * * * * * * * ---------------------------------------------------------------------------------------------------------------- Article 4 Standards of Performance for Stationary Sources (Rule 5-4) ---------------------------------------------------------------------------------------------------------------- 5-50-240............. Applicability and 11/7/12 8/22/16 [Insert Federal Paragraphs A and C are designation of Register Citation]. revised. affected facility. 5-50-250............. Definitions............ 11/7/12 8/22/16 [Insert Federal Paragraphs A-C are Register Citation]. revised. 5-50-260............. Standards for 11/7/12 8/22/16 [Insert Federal Paragraphs A-D are stationary sources. Register Citation]. revised. ---------------------------------------------------------------------------------------------------------------- * * * * * * * ---------------------------------------------------------------------------------------------------------------- 9 VAC 5, Chapter 80 Permits for Stationary Sources [Part VIII] ---------------------------------------------------------------------------------------------------------------- * * * * * * * ---------------------------------------------------------------------------------------------------------------- Article 6--Permits for New and Modified Stationary Sources ---------------------------------------------------------------------------------------------------------------- 5-80-1100............ Applicability.......... 11/7/12 8/22/16 [Insert Federal ....................... Register Citation]. 5-80-1105............ Permit Exemptions...... 11/7/12 8/22/16 [Insert Federal Paragraph E is Register Citation]. excluded. 5-80-1110............ Definitions............ 11/7/12 8/22/16 [Insert Federal The definition at Register Citation]. paragraph 5 under ``Regulated air pollutant,'' and the definition of ``Toxic pollutant'' are excluded. 5-80-1120............ General................ 11/7/12 8/22/16 [Insert Federal ....................... Register Citation]. 5-80-1130............ Reserved............... .............. ....................... Excluded from SIP. 5-80-1140............ Applications........... 11/7/12 8/22/16 [Insert Federal ....................... Register Citation]. 5-80-1150............ Application information 11/7/12 8/22/16 [Insert Federal ....................... required. Register Citation]. 5-80-1160............ Action on permit 11/7/12 8/22/16 [Insert Federal The latter portion of application. Register Citation]. paragraph D (beginning with ``. . . direct consideration by the board . . .'') is excluded. 5-80-1170............ Public participation... 11/7/12 8/22/16 [Insert Federal Paragraphs F and G are Register Citation]. excluded. See Sec. 52.2423(o). [[Page 56512]] 5-80-1180............ Standards and 11/7/12 8/22/16 [Insert Federal The portion of conditions for Register Citation]. paragraph A.1 granting permits. pertaining to hazardous air pollutant sources as proscribed under 9VAC5- 60 is excluded. 5-80-1190............ Application review and 11/7/12 8/22/16 [Insert Federal Paragraph 2 is analysis. Register Citation]. excluded. 5-80-1200............ Compliance 11/7/12 8/22/16 [Insert Federal ....................... determination and Register Citation]. verification by performance testing. 5-80-1210............ Permit invalidation, 11/7/12 8/22/16 [Insert Federal Paragraph B is suspension, revocation Register Citation]. excluded. and enforcement. 5-80-1220............ Existence of permit no 11/7/12 8/22/16 [Insert Federal ....................... defense. Register Citation]. 5-80-1230............ Compliance with local 11/7/12 8/22/16 [Insert Federal ....................... zoning. Register Citation]. 5-80-1240............ Transfer of permits.... 11/7/12 8/22/16 [Insert Federal ....................... Register Citation]. 5-80-1250............ General permits........ 11/7/12 8/22/16 [Insert Federal ....................... Register Citation]. 5-80-1260............ Action to combine 11/7/12 8/22/16 [Insert Federal ....................... permit terms and Register Citation]. conditions. 5-80-1270............ Actions to change 11/7/12 8/22/16 [Insert Federal ....................... permits. Register Citation]. 5-80-1280............ Administrative permit 11/7/12 8/22/16 [Insert Federal ....................... amendments. Register Citation]. 5-80-1290............ Minor permit amendments 11/7/12 8/22/16 [Insert Federal ....................... Register Citation]. 5-80-1300............ Significant amendment 11/7/12 8/22/16 [Insert Federal ....................... procedures. Register Citation]. ---------------------------------------------------------------------------------------------------------------- * * * * * * * ---------------------------------------------------------------------------------------------------------------- * * * * * [FR Doc. 2016-19770 Filed 8-19-16; 8:45 am] BILLING CODE 6560-50-P
![56508 Federal Register / Vol. 81, No. 162 / Monday, August 22, 2016 / Rules and Regulations
ENVIRONMENTAL PROTECTION making effective comments, please visit www.regulations.gov, and will not be
AGENCY http://www2.epa.gov/dockets/ restated here.
commenting-epa-dockets. Among those revisions was the
40 CFR Part 52 FOR FURTHER INFORMATION CONTACT: evolution and recodification of
[EPA–R03–OAR–2015–0642; FRL–9950–91– David Talley, (215) 814–2117, or by VADEQ’s minor NSR program from
Region 3] email at talley.david@epa.gov. 9VAC5 Chapter 80 sections 10 and 11 to
Article 6 of Part II of 9VAC5 Chapter 80.
SUPPLEMENTARY INFORMATION:
Approval and Promulgation of Air Sections 10 and 11 of 9VAC5–80 are
Quality Implementation Plans; Virginia; I. Background being removed from the SIP and
Minor New Source Review replaced as part of this action.
On July 15, 2013, the Commonwealth
Requirements Additionally, the submittal includes
of Virginia submitted a formal revision
revisions to 9VAC5–50, sections 240,
AGENCY: Environmental Protection to its SIP. The SIP revision consists of
250, and 260. The submittal also
Agency (EPA). amendments to the Virginia Department
includes revisions to the requirements
ACTION: Direct final rule. of Environmental Quality’s (VADEQ)
for public participation under Article 6
minor New Source Review (NSR)
SUMMARY: The Environmental Protection which correct the deficiencies which
program, as well as a complete
Agency (EPA) is taking direct final were the reason for EPA’s previously-
recodification of those regulations.
action to approve revisions to the mentioned July 24, 1996 disapproval
On July 24, 1996, EPA took final action.
Commonwealth of Virginia state action to approve in part and 9VAC5–50–240 has been revised to
implementation plan (SIP). These disapprove in part a revision to the maintain consistency with revisions in
revisions pertain to preconstruction Virginia SIP relating to minor NSR the new Article 6; to clarify which
permitting requirements under permitting requirements. See 61 FR emissions units are subject to the minor
Virginia’s minor New Source Review 38388. EPA disapproved revisions to the NSR regulations; and to appropriately
(NSR) program. EPA is approving these public participation requirements which exempt hazardous air pollutants (HAPs)
revisions to the Virginia SIP in were, at the time, codified at Virginia regulated under 9VAC5–60, consistent
accordance with the requirements of the Regulations (VR) section 120–08–1. with 40 CFR 51.166.
Clean Air Act (CAA). Specifically, EPA disapproved sections Additionally, a number of revisions
DATES: This rule is effective on October 120–08–01G.1 and .01G.4.b because have been made to the best available
21, 2016 without further notice, unless they purported to exempt major control technology (BACT) requirements
EPA receives adverse written comment modifications of less than 100 tons per under Virginia’s minor NSR program.
by September 21, 2016. If EPA receives year (tpy) from the prescribed public The definition of BACT under 9VAC5–
such comments, it will publish a timely participation procedures, contrary to the 50–250 has been revised to provide for
withdrawal of the direct final rule in the requirements of 40 CFR 51.161. This left the consideration of additional factors
Federal Register and inform the public the previously approved SIP in determining BACT (e.g., nature and
that the rule will not take effect. requirements of VR section 120–08– amount of emissions, control
ADDRESSES: Submit your comments, 01C.4 in place to govern public efficiencies across industry source
identified by Docket ID No. EPA–R03– participation. EPA approved the types, etc.). 9VAC5–50–260 has been
OAR–2015–0642 at http:// remainder of the submittal into revised to require BACT determinations
www.regulations.gov, or via email to Virginia’s SIP. for all emissions units subject to the
campbell.dave@epa.gov. For comments Subsequently, on April 21, 2000, EPA minor NSR program, and to require that,
submitted at Regulations.gov, follow the took final action to approve a revision for phased construction projects, BACT
online instructions for submitting to the Virginia SIP which did not revise must be reviewed within 18 months of
comments. Once submitted, comments any of the substantive requirements, but construction of each individual phase.
cannot be edited or removed from included in the SIP Virginia’s 9VAC5–50–260 has also been revised to
Regulations.gov. For either manner of reorganized and recodified regulations require BACT for all emissions units
submission, the EPA may publish any from the VR–120–08–01 format to match which are subject to the minor NSR
comment received to its public docket. the Virginia Administrative Code (VAC) program. These changes to 9VAC5–50
Do not submit electronically any format (e.g., 9VAC5–80–10). See 78 FR have been made in order to simplify the
information you consider to be 21315. minor NSR program, and are
confidential business information (CBI) appropriate and meet the federal
or other information whose disclosure is II. Summary of SIP Revision and EPA
requirements of 40 CFR 51.160 and
restricted by statute. Multimedia Analysis
51.161, and CAA section 110(a)(2)(C).
submissions (audio, video, etc.) must be Virginia’s July 15, 2013 submittal Additionally, the revisions are in
accompanied by a written comment. encompasses a number of revisions to accordance with section 110(l) of the
The written comment is considered the Virginia’s regulations that were CAA because they will not interfere
official comment and should include completed at the Commonwealth level, with any applicable requirement
discussion of all points you wish to but not submitted to and approved by concerning attainment and reasonable
make. The EPA will generally not EPA as revisions to the Virginia SIP. further progress, or any other applicable
consider comments or comment VADEQ compiled the various revisions CAA requirement.
contents located outside of the primary and submitted them so that EPA could Generally, the new Article 6
submission (i.e., on the web, cloud, or review the program as a whole. A regulations represent a recodification of
other file sharing system). For thorough discussion of the details of the the minor NSR program from section 10
Lhorne on DSK30JT082PROD with RULES
additional submission methods, please regulatory changes made by Virginia as and 11 of 9VAC5–80. Sections 10 and
contact the person identified in the FOR well as EPA’s analysis of those changes 11 are being deleted from the SIP
FURTHER INFORMATION CONTACT section. to the regulations and the Virginia SIP because they are largely duplicative
For the full EPA public comment policy, are located in the technical support with the new provisions. In addition,
information about CBI or multimedia document (TSD) in the docket for this the deficiency related to the public
submissions, and general guidance on action, available at participation requirements identified in
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![56510 Federal Register / Vol. 81, No. 162 / Monday, August 22, 2016 / Rules and Regulations
voluntary environmental assessment; (2) likewise unaffected by this, or any, state in the Unfunded Mandates Reform Act
are prepared independently of the audit privilege or immunity law. of 1995 (Pub. L. 104–4);
assessment process; (3) demonstrate a • does not have federalism
V. Incorporation by Reference implications as specified in Executive
clear, imminent and substantial danger
to the public health or environment; or In this rulemaking action, EPA is Order 13132 (64 FR 43255, August 10,
(4) are required by law. finalizing regulatory text that includes 1999);
On January 12, 1998, the incorporation by reference. In • is not an economically significant
Commonwealth of Virginia Office of the accordance with requirements of 1 CFR regulatory action based on health or
Attorney General provided a legal 51.5, the EPA is finalizing the safety risks subject to Executive Order
opinion that states that the Privilege incorporation by reference of the 13045 (62 FR 19885, April 23, 1997);
Law, Va. Code Sec. 10.1–1198, Virginia regulations as described in the • is not a significant regulatory action
precludes granting a privilege to amendments to 40 CFR part 52 set forth subject to Executive Order 13211 (66 FR
documents and information ‘‘required below. Therefore, these materials have 28355, May 22, 2001);
by law,’’ including documents and been approved by EPA for inclusion in • is not subject to requirements of
information ‘‘required by federal law to the SIP, have been incorporated by Section 12(d) of the National
maintain program delegation, reference by EPA into that plan, are Technology Transfer and Advancement
authorization or approval,’’ since fully federally enforceable under Act of 1995 (15 U.S.C. 272 note) because
Virginia must ‘‘enforce federally sections 110 and 113 of the CAA as of application of those requirements would
authorized environmental programs in a the effective date of the final rulemaking be inconsistent with the CAA; and
manner that is no less stringent than of EPA’s approval, and will be • does not provide EPA with the
their federal counterparts . . . .’’ The incorporated by reference by the discretionary authority to address, as
opinion concludes that ‘‘[r]egarding Director of the Federal Register in the appropriate, disproportionate human
§ 10.1–1198, therefore, documents or next update of the SIP compilation.1 health or environmental effects, using
other information needed for civil or The EPA has made, and will continue practicable and legally permissible
criminal enforcement under one of these to make, these documents generally methods, under Executive Order 12898
programs could not be privileged available electronically through (59 FR 7629, February 16, 1994).
because such documents and www.regulations.gov and/or may be The SIP is not approved to apply on
information are essential to pursuing viewed at the appropriate EPA office any Indian reservation land as defined
enforcement in a manner required by (see the ADDRESSES section of this in 18 U.S.C. 1151 or in any other area
federal law to maintain program preamble for more information). where EPA or an Indian tribe has
delegation, authorization or approval.’’ demonstrated that a tribe has
Virginia’s Immunity law, Va. Code Sec. VI. Statutory and Executive Order jurisdiction. In those areas of Indian
10.1–1199, provides that ‘‘[t]o the extent Reviews country, the rule does not have tribal
consistent with requirements imposed A. General Requirements implications and will not impose
by federal law,’’ any person making a substantial direct costs on tribal
voluntary disclosure of information to a Under the CAA, the Administrator is governments or preempt tribal law as
state agency regarding a violation of an required to approve a SIP submission specified by Executive Order 13175 (65
environmental statute, regulation, that complies with the provisions of the FR 67249, November 9, 2000).
permit, or administrative order is CAA and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a). B. Submission to Congress and the
granted immunity from administrative
Thus, in reviewing SIP submissions, Comptroller General
or civil penalty. The Attorney General’s
January 12, 1998 opinion states that the EPA’s role is to approve state choices, The Congressional Review Act, 5
quoted language renders this statute provided that they meet the criteria of U.S.C. 801 et seq., as added by the Small
inapplicable to enforcement of any the CAA. Accordingly, this action Business Regulatory Enforcement
federally authorized programs, since merely approves state law as meeting Fairness Act of 1996, generally provides
‘‘no immunity could be afforded from federal requirements and does not that before a rule may take effect, the
administrative, civil, or criminal impose additional requirements beyond agency promulgating the rule must
penalties because granting such those imposed by state law. For that submit a rule report, which includes a
immunity would not be consistent with reason, this action: copy of the rule, to each House of the
federal law, which is one of the criteria • Is not a ‘‘significant regulatory Congress and to the Comptroller General
for immunity.’’ action’’ subject to review by the Office of the United States. EPA will submit a
Therefore, EPA has determined that of Management and Budget under report containing this action and other
Virginia’s Privilege and Immunity Executive Orders 12866 (58 FR 51735, required information to the U.S. Senate,
statutes will not preclude the October 4, 1993) and 13563 (76 FR 3821, the U.S. House of Representatives, and
Commonwealth from enforcing its NSR January 21, 2011); the Comptroller General of the United
program consistent with the federal • does not impose an information States prior to publication of the rule in
requirements. In any event, because collection burden under the provisions the Federal Register. A major rule
EPA has also determined that a state of the Paperwork Reduction Act (44 cannot take effect until 60 days after it
audit privilege and immunity law can U.S.C. 3501 et seq.); is published in the Federal Register.
affect only state enforcement and cannot • is certified as not having a This action is not a ‘‘major rule’’ as
have any impact on federal enforcement significant economic impact on a defined by 5 U.S.C. 804(2).
authorities, EPA may at any time invoke substantial number of small entities
its authority under the CAA, including, under the Regulatory Flexibility Act (5 C. Petitions for Judicial Review
Lhorne on DSK30JT082PROD with RULES
for example, sections 113, 167, 205, 211 U.S.C. 601 et seq.); Under section 307(b)(1) of the CAA,
or 213, to enforce the requirements or • does not contain any unfunded petitions for judicial review of this
prohibitions of the state plan, mandate or significantly or uniquely action must be filed in the United States
independently of any state enforcement affect small governments, as described Court of Appeals for the appropriate
effort. In addition, citizen enforcement circuit by October 21, 2016. Filing a
under section 304 of the CAA is 1 62 FR 27968 (May 22, 1997). petition for reconsideration by the
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![Federal Register / Vol. 81, No. 162 / Monday, August 22, 2016 / Rules and Regulations 56511
Administrator of this final rule does not List of Subjects in 40 CFR Part 52 Subpart VV—Virginia
affect the finality of this action for the
purposes of judicial review nor does it Environmental protection, Air ■ 2. In § 52.2420, the table in paragraph
extend the time within which a petition pollution control, Carbon monoxide, (c) is amended by:
for judicial review may be filed, and Incorporation by reference, ■ a. Removing the section entitled
shall not postpone the effectiveness of Intergovernmental relations, Lead, ‘‘9VAC5, Chapter 80 Permits for
such rule or action. Parties with Nitrogen dioxide, Ozone, Particulate Stationary Sources [Part VIII]’’ including
matter, Reporting and recordkeeping the entries for Sections 5–80–10, 10A
objections to this direct final rule are
requirements, Sulfur oxides, Volatile through 10P, VR120–08–01C.4.b and
encouraged to file a comment in
organic compounds. .01C.4.c, and 5–80–11;
response to the parallel notice of
Dated: August 9, 2016. ■ b. Revising the entries for Sections 5–
proposed rulemaking for this action
50–240, 5–50–250, and 5–50–260;
published in the proposed rules section Shawn M. Garvin,
■ c. Adding the heading ‘‘Article 6—
of this Federal Register, rather than file Regional Administrator, Region III. Permits for New and Modified
an immediate petition for judicial Stationary Sources’’ and entries for
review of this direct final rule, so that 40 CFR part 52 is amended as follows:
Sections 5–80–1100 through 5–80–1300
EPA can withdraw this direct final rule immediately following the entry for 5–
PART 52—APPROVAL AND
and address the comment in the 80–1040.
PROMULGATION OF
proposed rulemaking action. This action The revisions and additions read as
IMPLEMENTATION PLANS
pertaining to Virginia’s minor NSR follows:
program may not be challenged later in
■ 1. The authority citation for part 52 § 52.2420 Identification of plan.
proceedings to enforce its requirements.
continues to read as follows: * * * * *
(See section 307(b)(2).)
Authority: 42 U.S.C. 7401 et seq. (c) * * *
EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES
State
State Title/Subject effective EPA Approval date Explanation [former SIP citation]
citation date
* * * * * * *
9 VAC 5, Chapter 50 New and Modified Stationary Sources [Part V]
* * * * * * *
Article 4 Standards of Performance for Stationary Sources (Rule 5–4)
5–50–240 Applicability and designation of 11/7/12 8/22/16 [Insert Federal Reg- Paragraphs A and C are revised.
affected facility. ister Citation].
5–50–250 Definitions ................................ 11/7/12 8/22/16 [Insert Federal Reg- Paragraphs A–C are revised.
ister Citation].
5–50–260 Standards for stationary 11/7/12 8/22/16 [Insert Federal Reg- Paragraphs A–D are revised.
sources. ister Citation].
* * * * * * *
9 VAC 5, Chapter 80 Permits for Stationary Sources [Part VIII]
* * * * * * *
Article 6—Permits for New and Modified Stationary Sources
5–80–1100 Applicability .............................. 11/7/12 8/22/16 [Insert Federal Reg-
ister Citation].
5–80–1105 Permit Exemptions .................. 11/7/12 8/22/16 [Insert Federal Reg- Paragraph E is excluded.
ister Citation].
5–80–1110 Definitions ................................ 11/7/12 8/22/16 [Insert Federal Reg- The definition at paragraph 5 under ‘‘Regu-
ister Citation]. lated air pollutant,’’ and the definition of
‘‘Toxic pollutant’’ are excluded.
5–80–1120 General .................................... 11/7/12 8/22/16 [Insert Federal Reg-
ister Citation].
5–80–1130 Reserved ................................. ........................ .................................................. Excluded from SIP.
5–80–1140 Applications ............................. 11/7/12 8/22/16 [Insert Federal Reg-
ister Citation].
5–80–1150 Application information re- 11/7/12 8/22/16 [Insert Federal Reg-
Lhorne on DSK30JT082PROD with RULES
quired. ister Citation].
5–80–1160 Action on permit application .... 11/7/12 8/22/16 [Insert Federal Reg- The latter portion of paragraph D (beginning
ister Citation]. with ‘‘. . . direct consideration by the board
. . .’’) is excluded.
5–80–1170 Public participation .................. 11/7/12 8/22/16 [Insert Federal Reg- Paragraphs F and G are excluded. See
ister Citation]. § 52.2423(o).
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![56512 Federal Register / Vol. 81, No. 162 / Monday, August 22, 2016 / Rules and Regulations
EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES—Continued
State
State Title/Subject effective EPA Approval date Explanation [former SIP citation]
citation date
5–80–1180 Standards and conditions for 11/7/12 8/22/16 [Insert Federal Reg- The portion of paragraph A.1 pertaining to
granting permits. ister Citation]. hazardous air pollutant sources as pro-
scribed under 9VAC5–60 is excluded.
5–80–1190 Application review and anal- 11/7/12 8/22/16 [Insert Federal Reg- Paragraph 2 is excluded.
ysis. ister Citation].
5–80–1200 Compliance determination and 11/7/12 8/22/16 [Insert Federal Reg-
verification by performance ister Citation].
testing.
5–80–1210 Permit invalidation, suspen- 11/7/12 8/22/16 [Insert Federal Reg- Paragraph B is excluded.
sion, revocation and en- ister Citation].
forcement.
5–80–1220 Existence of permit no defense 11/7/12 8/22/16 [Insert Federal Reg-
ister Citation].
5–80–1230 Compliance with local zoning .. 11/7/12 8/22/16 [Insert Federal Reg-
ister Citation].
5–80–1240 Transfer of permits .................. 11/7/12 8/22/16 [Insert Federal Reg-
ister Citation].
5–80–1250 General permits ....................... 11/7/12 8/22/16 [Insert Federal Reg-
ister Citation].
5–80–1260 Action to combine permit terms 11/7/12 8/22/16 [Insert Federal Reg-
and conditions. ister Citation].
5–80–1270 Actions to change permits ....... 11/7/12 8/22/16 [Insert Federal Reg-
ister Citation].
5–80–1280 Administrative permit amend- 11/7/12 8/22/16 [Insert Federal Reg-
ments. ister Citation].
5–80–1290 Minor permit amendments ....... 11/7/12 8/22/16 [Insert Federal Reg-
ister Citation].
5–80–1300 Significant amendment proce- 11/7/12 8/22/16 [Insert Federal Reg-
dures. ister Citation].
* * * * * * *
* * * * * Sulfur Dioxide (SO2), and 2012 annual available, i.e., Confidential Business
[FR Doc. 2016–19770 Filed 8–19–16; 8:45 am] Fine Particulate Matter (PM2.5) National Information or other information whose
BILLING CODE 6560–50–P Ambient Air Quality Standards disclosure is restricted by statute.
(NAAQS). The CAA requires that each Certain other material, such as
state adopt and submit a SIP for the copyrighted material, is not placed on
ENVIRONMENTAL PROTECTION implementation, maintenance, and the Internet and will be publicly
AGENCY enforcement of each NAAQS available only in hard copy form.
promulgated by EPA, commonly Publicly available docket materials are
40 CFR Part 52 referred to as an ‘‘infrastructure SIP.’’ available either electronically through
Specifically, EPA is conditionally www.regulations.gov or in hard copy at
[EPA–R04–OAR–2016–0247; FRL–9950–82–
Region 4]
approving the prong 4 portions of South the Air Regulatory Management Section,
Carolina’s July 17, 2008, 8-hour Ozone Air Planning and Implementation
Air Plan Approval; South Carolina; infrastructure SIP submission; April 30, Branch, Air, Pesticides and Toxics
Prong 4–2008 Ozone, 2010 NO2, SO2, 2014, 2010 1-hour NO2 infrastructure Management Division, U.S.
and 2012 PM2.5 SIP submission; May 8, 2014, 2010 1- Environmental Protection Agency,
hour SO2 infrastructure SIP submission; Region 4, 61 Forsyth Street SW.,
AGENCY: Environmental Protection and December 18, 2015, 2012 annual Atlanta, Georgia 30303–8960. EPA
Agency (EPA). PM2.5 infrastructure SIP submission. All requests that if at all possible, you
ACTION: Final rule. other applicable infrastructure contact the person listed in the FOR
requirements for these SIP submissions FURTHER INFORMATION CONTACT section to
SUMMARY: The Environmental Protection have been or will be addressed in schedule your inspection. The Regional
Agency (EPA) is conditionally separate rulemakings. Office’s official hours of business are
approving the portions of revisions to
DATES:This rule will be effective Monday through Friday 8:30 a.m. to
the South Carolina State
September 21, 2016. 4:30 p.m., excluding federal holidays.
Implementation Plan (SIP), submitted
by the South Carolina Department of ADDRESSES: EPA has established a FOR FURTHER INFORMATION CONTACT:
Lhorne on DSK30JT082PROD with RULES
Health and Environmental Control (SC docket for this action under Docket Sean Lakeman of the Air Regulatory
DHEC), addressing the Clean Air Act Identification No. EPA–R04–OAR– Management Section, Air Planning and
(CAA or Act) visibility transport (prong 2016–0247. All documents in the docket Implementation Branch, Air, Pesticides
4) infrastructure SIP requirements for are listed on the www.regulations.gov and Toxics Management Division, U.S.
the 2008 8-hour Ozone, 2010 1-hour Web site. Although listed in the index, Environmental Protection Agency,
Nitrogen Dioxide (NO2), 2010 1-hour some information may not be publicly Region 4, 61 Forsyth Street SW.,
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Document Created: 2018-02-09 11:38:03
Document Modified: 2018-02-09 11:38:03
| 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 October 21, 2016 without further notice, unless EPA receives adverse written comment by September 21, 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 | David Talley, (215) 814-2117, or by email at [email protected] | |
| FR Citation | 81 FR 56508 | |
| 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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