82 FR 18272 - Approval and Promulgation of Air Quality Implementation Plans; Virginia; Major New Source Review
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 82, Issue 73 (April 18, 2017)
Federal Register Volume 82, Issue 73 (April 18, 2017)
| Page Range | 18272-18275 | |
| FR Document | 2017-07820 |
[Federal Register Volume 82, Number 73 (Tuesday, April 18, 2017)] [Proposed Rules] [Pages 18272-18275] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-07820] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2016-0052; FRL-9961-50-Region 3] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Major New Source Review AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is proposing to approve revisions to the Commonwealth of Virginia state implementation plan (SIP). The revisions amend Virginia's major source New Source Review (NSR) regulations to make them consistent with the federal program. EPA is proposing to approve these revisions to the Virginia SIP in accordance with the requirements of the Clean Air Act (CAA). DATES: Written comments must be received on or before May 18, 2017. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03- OAR-2016-0052 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, 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. 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 The CAA's NSR programs are preconstruction review and permitting programs applicable to new and modified stationary sources of air pollutants regulated under the CAA. The NSR programs of the CAA include a combination of air quality planning and air pollution control technology program requirements. Briefly, section 109 of the CAA requires EPA to promulgate primary national ambient air quality standards (NAAQS) to protect public health and secondary NAAQS to protect public welfare. Once EPA sets those standards, states must develop, adopt, and submit to EPA for approval a SIP that contains emissions limitations and other control measures to attain and maintain the NAAQS. Pursuant to section 110, each SIP is required to contain a preconstruction review program for the construction and modification of any stationary source of air pollution to assure that the NAAQS are achieved and maintained; to protect areas of clean air; to protect air quality-related values (such as visibility) in national parks and other areas; to assure that appropriate emissions controls are applied; to maximize opportunities for economic development consistent with the preservation of clean air resources; and, to ensure that any decision to increase air pollution is made only after full public consideration of the consequences of the decision. Section 172 of the CAA requires a permit program in areas which are not attaining the NAAQS, and section 173 provides the specific requirements for that permit program. On October 16, 2015, the Virginia Department of Environmental Quality (VADEQ), on behalf of the Commonwealth of Virginia, submitted a formal revision to the Virginia SIP. The SIP revision consists of amendments to the preconstruction permit requirements under VADEQ's major NSR permit program. The revision affects sources subject to VADEQ's Prevention of Significant Deterioration (PSD) program, which applies in areas which are in attainment with (or unclassifiable for) the NAAQS, as well as affecting sources subject to its nonattainment NSR permit program, applicable in areas not in attainment with the NAAQS. By letter dated March 1, 2017, VADEQ officially withdrew a small and specific portion of the October 16, 2015 submittal from consideration for approval into the Virginia SIP. A copy of the letter has been included in the docket for this action. Further discussion of the withdrawal is provided in section II.A of this notice. II. Summary of SIP Revision and EPA Analysis Generally, the October 16, 2015 SIP submittal revision (as amended March 1, 2017) (hereinafter referred to as the 2015 NSR SIP Revision) is intended to make the Virginia Administrative Code regulations at 9VAC5 consistent with the federal NSR program at 40 CFR 51.165 and 51.166. The specific changes to 9VAC5 are intended to: (1) Allow the use of a 10-year lookback period to calculate pre-change emissions for sources other than electric utility steam generating units (EGUs); (2) Allow the use of different lookback periods for different regulated NSR pollutants; (3) Extend the effective period for plantwide applicability limits (PALs) to 10 years; and, (4) Allow replacement units to be treated as existing units, and thus provide the ability to use baseline actual and projected actual emissions when determining applicability. Additionally, there are a number of minor changes which are strictly administrative in nature, consisting of small grammatical revisions, or re-numbering. EPA is proposing to approve VADEQ's 2015 NSR SIP Revision as a revision to the Virginia SIP because it meets the federal requirements of 40 CFR 51.165 and 51.165, and CAA sections 110(a) and 173. 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. A. Baseline Actual Emissions NSR applicability is determined by comparing the pre-change emissions of the project to the post-change emissions and determining whether the net increase is ``significant.'' For new units, pre-change (baseline) emissions are [[Page 18273]] zero. For modified units, sources must calculate baseline actual emissions (BAE). For sources other than EGUs, the federal PSD and nonattainment NSR regulations provide for the calculation of BAE using ``. . . the average rate, in tons per year, at which the emissions unit actually emitted the pollutant during any consecutive 24-month period selected by the owner or operator within the 10-year period immediately preceding either the date the owner or operator begins actual construction of the project, or the date a complete permit application is received by the reviewing authority . . .'' See 40 CFR 51.165(a)(1)(xxxv)(B) and 51.166(b)(47)(ii). VADEQ's currently approved BAE definitions, codified at 9VAC5-80 sections 1615C (PSD) and 2010C (nonattainment NSR), provide for a 5-year lookback period. The 2015 NSR SIP Revision includes VADEQ's revised definitions of BAE to provide for a 10-year lookback period for non EGUs, consistent with the federal counterpart. When EPA originally approved the 5-year lookback into VADEQ's nonattainment NSR and PSD programs, limited approval was granted. See 73 FR 62893, 62897 (October 22, 2008). The previous definitions of BAE at 9VAC5-80 sections 1615C and 2010C in VADEQ's June 27, 2008 SIP submittals included the 5-year lookback which EPA found approvable, despite being different from the federal lookback period. However, VADEQ's regulations at the time in sections 1615C and 2010C also included provisions for the use of a different time period to calculate BAE if it was found to be more representative of normal operations. In our October 22, 2008 final rulemaking notice, EPA raised concerns that this provision could allow for the use of a lookback period that extended beyond the ten years allowed by the federal programs for PSD and NSR. However, EPA noted that because VADEQ had affirmed that it was not its intention to extend the lookback period beyond ten years, a limited approval was justified. See 73 FR at 62898. In VADEQ's 2015 NSR SIP Revision submittal, the provision allowing for the use of a different lookback period if it was found to be more representative of normal operations was struck from the definition of BAE at 9VAC5-80 section 1615C, making it consistent with the federal counterpart. However, that provision was inadvertently left in the definition of BAE in the version of 9VAC5-80 section 2010C for NSR. By letter dated March 1, 2017, VADEQ officially withdrew from EPA's consideration for inclusion into the SIP the portion of the definition of BAE at section 2010C stating, ``The board will allow the use of another time period upon a determination that it is more representative of normal source operation.'' Thus, EPA finds the revised definition of BAE at 9VAC5-80 section 2010C (with the provision for a different lookback period stricken) fully approvable as the definition is consistent with federal CAA requirements. EPA expects that the sentence withdrawn from the SIP submittal will be removed from the Virginia Code as soon as practicable as Virginia affirmed in its March 1, 2017 letter, and that VADEQ will implement its NSR program consistent with the approved SIP and the federal requirements for NSR in the interim. With this approval, EPA would also remove its prior limited approval for these regulations. Finally, the federal requirement for calculating BAE for PSD and NSR provide for the use of different 24-month periods for different regulated NSR pollutants. See 40 CFR 51.165(a)(1)(xxxv)(B)(4) and 51.166(b)(47)(ii)(c). Under VADEQ's currently SIP-approved BAE definitions at 9VAC5-80 sections 1615C and 2010C, and 9VAC5-85 section 50, sources were required to use the same 24-month period for all regulated NSR pollutants. VADEQ has revised these provisions to allow for the use of different 24-month periods for different regulated NSR pollutants for both PSD and NSR and has submitted these revised definitions in 9VAC5-80 sections 1615C and 2010C and 9VAC5-85 section 50 in its 2015 NSR SIP Revision to be consistent with the federal requirements relating to different lookback periods for different regulated NSR pollutants. Because these revisions are consistent with federal definitions in 40 CFR 51.165 and 51.166 for using different 24- month periods for different regulated NSR pollutants, EPA finds these additional revisions in 9VAC5-80 sections 1615C and 2010C and 9VAC5-85 section 50 approvable in accordance with CAA requirements. B. Plantwide Applicability Limits (PALs) Federal requirements for PALs include an effective period of ten years for the plantwide permit.\1\ See 40 CFR 51.165(f) et seq and 51.166(w) et seq. VADEQ's currently-SIP approved regulations only provided for a 5-year effective period for such plantwide permits. The 2015 NSR SIP Revision includes amended versions of 9VAC-5-80 sections 1615C, 1865C(1)(f), 2010C, and 2144C(1)(f), as well as 9VAC5-85-50, to provide for a PAL effective period of ten years, consistent with the federal regulations providing for a ten-year PAL effective period. In addition, the 2015 NSR SIP Revision includes amended versions of 9VAC5- 80 sections 1865E and 2144E and 9VAC5-85-55 to allow for the use of different 24-month periods for different regulated NSR pollutants when establishing PALs, consistent with the discussion in Section II.A of this notice. Because these amended regulations for PAL effective period and baseline calculations are now consistent with federal requirements for PALs in 40 CFR 51.165 and 51.166, EPA finds these amended provisions approvable for the Virginia SIP. --------------------------------------------------------------------------- \1\ A PAL is a voluntary permit option that provides the ability to manage facility-wide emissions without triggering major NSR review. The flexibility provided under a PAL facilitates the ability to respond rapidly to changing market conditions while enhancing the environmental protection afforded under the program. If facility emissions remain below a plantwide actual emissions cap (that is, an actuals PAL), then a facility can avoid major NSR permitting process when making alterations to the facility or individual emissions units that would otherwise trigger NSR permitting. In return for this flexibility, facilities must monitor emissions from all emissions units under the PAL in addition to other recordkeeping and reporting requirements. --------------------------------------------------------------------------- C. Replacement Units Finally, the 2015 NSR SIP Revision submittal adds definitions of ``replacement unit,'' and amends the definitions of ``emissions unit,'' under 9VAC5-80 sections 1615C and 2010C and 9VAC5-85 section 50. The effect of these revisions is to allow replacement units to be treated as existing units when calculating pre- and post-change emissions for purposes of determining NSR applicability. VADEQ's definitions of ``replacement unit'' are consistent with their federal counterparts at 40 CFR 51.165(a)(1)(xxi) and 51.166(b)(32). VADEQ's amended definitions of ``emissions unit'' are now consistent with their federal counterparts at 40 CFR 51.165(a)(1)(vii) and 51.166(b)(7), as is VADEQ's approach to calculating pre- and post-change emissions for replacement units. Thus, EPA finds these new and amended provisions in the 2015 NSR SIP Revision approvable. EPA finds the revisions to 9VAC5-80 sections 1615, 1865, 2010, and 2144 and 9 VAC5-85 sections 50 and 55 (including the changes discussed herein as well as the minor administrative changes for grammatical and numbering consistency) consistent with CAA section 110(l). None of the revisions interfere with any applicable requirement concerning attainment of any NAAQS nor interfere with reasonable further progress or any other applicable requirement of the CAA. As [[Page 18274]] described in this rulemaking, the revisions to the Virginia Code in the 2015 NSR SIP Revision are consistent with federal requirements for PSD and NSR in 40 CFR 51.165 and 51.166. Because the revisions are consistent with federal requirements for PSD and NSR permitting programs which permit construction and modifications in accordance with permitting and emission limitation requirements and address definitions for BAE and PAL effective periods, EPA does not expect any interference with the NAAQS from these revisions. III. Proposed Action EPA's review of VADEQ's 2015 NSR SIP Revision submittal indicates that it is consistent with the CAA and all of its implementing regulations. Therefore, EPA is proposing to approve the October 16, 2015 submittal, as amended on March 1, 2017, as a revision to the Virginia SIP. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action. 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. 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 proposed rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference the VADEQ regulations regarding definition and permitting requirements discussed in Section II of this notice. EPA has made, and will continue to make, these materials generally available through http://www.regulations.gov and/or at the EPA Region III Office (please contact the person identified in the ``For Further Information Contact'' section of this preamble for more information). VI. Statutory and Executive Order Reviews 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 proposed 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 [[Page 18275]] 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, pertaining to Virginia's preconstruction permitting requirements 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). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Authority: 42 U.S.C. 7401 et seq. Dated: March 21, 2017. Cecil Rodrigues, Acting Regional Administrator, Region III. [FR Doc. 2017-07820 Filed 4-17-17; 8:45 am] BILLING CODE 6560-50-P
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List of Subjects in 40 CFR Part 52 discussion of all points you wish to the preconstruction permit requirements
Environmental protection, Air make. EPA will generally not consider under VADEQ’s major NSR permit
pollution control, Ozone, Incorporation comments or comment contents located program. The revision affects sources
by reference, Intergovernmental outside of the primary submission (i.e. subject to VADEQ’s Prevention of
relations, Reporting and recordkeeping on the web, cloud, or other file sharing Significant Deterioration (PSD) program,
requirements. system). For additional submission which applies in areas which are in
methods, please contact the person attainment with (or unclassifiable for)
Authority: 42 U.S.C. 7401 et seq. identified in the ‘‘For Further the NAAQS, as well as affecting sources
Dated: March 2, 2017. Information Contact’’ section. For the subject to its nonattainment NSR permit
Cecil Rodrigues, full EPA public comment policy, program, applicable in areas not in
Acting Regional Administrator, Region III. information about CBI or multimedia attainment with the NAAQS. By letter
submissions, and general guidance on dated March 1, 2017, VADEQ officially
Dated: March 1, 2017.
making effective comments, please visit withdrew a small and specific portion of
Catherine McCabe,
http://www2.epa.gov/dockets/ the October 16, 2015 submittal from
Acting Regional Administrator, Region II. consideration for approval into the
commenting-epa-dockets.
[FR Doc. 2017–07826 Filed 4–17–17; 8:45 am] Virginia SIP. A copy of the letter has
FOR FURTHER INFORMATION CONTACT:
BILLING CODE 6560–50–P
David Talley, (215) 814–2117, or by been included in the docket for this
email at talley.david@epa.gov. action. Further discussion of the
withdrawal is provided in section II.A
ENVIRONMENTAL PROTECTION SUPPLEMENTARY INFORMATION:
of this notice.
AGENCY I. Background II. Summary of SIP Revision and EPA
40 CFR Part 52 The CAA’s NSR programs are Analysis
preconstruction review and permitting Generally, the October 16, 2015 SIP
[EPA–R03–OAR–2016–0052; FRL–9961–50-
programs applicable to new and submittal revision (as amended March
Region 3]
modified stationary sources of air 1, 2017) (hereinafter referred to as the
Approval and Promulgation of Air pollutants regulated under the CAA. 2015 NSR SIP Revision) is intended to
Quality Implementation Plans; Virginia; The NSR programs of the CAA include make the Virginia Administrative Code
Major New Source Review a combination of air quality planning regulations at 9VAC5 consistent with
and air pollution control technology the federal NSR program at 40 CFR
AGENCY: Environmental Protection program requirements. Briefly, section 51.165 and 51.166. The specific changes
Agency (EPA). 109 of the CAA requires EPA to to 9VAC5 are intended to: (1) Allow the
ACTION: Proposed rule. promulgate primary national ambient use of a 10-year lookback period to
air quality standards (NAAQS) to calculate pre-change emissions for
SUMMARY: The Environmental Protection
protect public health and secondary sources other than electric utility steam
Agency (EPA) is proposing to approve
NAAQS to protect public welfare. Once generating units (EGUs); (2) Allow the
revisions to the Commonwealth of
EPA sets those standards, states must use of different lookback periods for
Virginia state implementation plan
develop, adopt, and submit to EPA for different regulated NSR pollutants; (3)
(SIP). The revisions amend Virginia’s
approval a SIP that contains emissions Extend the effective period for
major source New Source Review (NSR)
limitations and other control measures plantwide applicability limits (PALs) to
regulations to make them consistent
to attain and maintain the NAAQS. 10 years; and, (4) Allow replacement
with the federal program. EPA is
Pursuant to section 110, each SIP is units to be treated as existing units, and
proposing to approve these revisions to
required to contain a preconstruction thus provide the ability to use baseline
the Virginia SIP in accordance with the
review program for the construction and actual and projected actual emissions
requirements of the Clean Air Act
modification of any stationary source of when determining applicability.
(CAA).
air pollution to assure that the NAAQS Additionally, there are a number of
DATES: Written comments must be are achieved and maintained; to protect minor changes which are strictly
received on or before May 18, 2017. areas of clean air; to protect air quality- administrative in nature, consisting of
ADDRESSES: Submit your comments, related values (such as visibility) in small grammatical revisions, or re-
identified by Docket ID No. EPA–R03– national parks and other areas; to assure numbering. EPA is proposing to approve
OAR–2016–0052 at http:// that appropriate emissions controls are VADEQ’s 2015 NSR SIP Revision as a
www.regulations.gov, or via email to applied; to maximize opportunities for revision to the Virginia SIP because it
miller.linda@epa.gov. For comments economic development consistent with meets the federal requirements of 40
submitted at Regulations.gov, follow the the preservation of clean air resources; CFR 51.165 and 51.165, and CAA
online instructions for submitting and, to ensure that any decision to sections 110(a) and 173. Additionally,
comments. Once submitted, comments increase air pollution is made only after the revisions are in accordance with
cannot be edited or removed from full public consideration of the section 110(l) of the CAA because they
Regulations.gov. For either manner of consequences of the decision. Section will not interfere with any applicable
submission, EPA may publish any 172 of the CAA requires a permit requirement concerning attainment and
comment received to its public docket. program in areas which are not attaining reasonable further progress, or any other
sradovich on DSK3GMQ082PROD with PROPOSALS2
Do not submit electronically any the NAAQS, and section 173 provides applicable CAA requirement.
information you consider to be the specific requirements for that permit
confidential business information (CBI) program. A. Baseline Actual Emissions
or other information whose disclosure is On October 16, 2015, the Virginia NSR applicability is determined by
restricted by statute. Multimedia Department of Environmental Quality comparing the pre-change emissions of
submissions (audio, video, etc.) must be (VADEQ), on behalf of the the project to the post-change emissions
accompanied by a written comment. Commonwealth of Virginia, submitted a and determining whether the net
The written comment is considered the formal revision to the Virginia SIP. The increase is ‘‘significant.’’ For new units,
official comment and should include SIP revision consists of amendments to pre-change (baseline) emissions are
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described in this rulemaking, the On January 12, 1998, the incorporation by reference. In
revisions to the Virginia Code in the Commonwealth of Virginia Office of the accordance with requirements of 1 CFR
2015 NSR SIP Revision are consistent Attorney General provided a legal 51.5, EPA is proposing to incorporate by
with federal requirements for PSD and opinion that states that the Privilege reference the VADEQ regulations
NSR in 40 CFR 51.165 and 51.166. Law, Va. Code § 10.1–1198, precludes regarding definition and permitting
Because the revisions are consistent granting a privilege to documents and requirements discussed in Section II of
with federal requirements for PSD and information ‘‘required by law,’’ this notice. EPA has made, and will
NSR permitting programs which permit including documents and information continue to make, these materials
construction and modifications in ‘‘required by federal law to maintain generally available through http://
accordance with permitting and program delegation, authorization or www.regulations.gov and/or at the EPA
emission limitation requirements and approval,’’ since Virginia must ‘‘enforce Region III Office (please contact the
address definitions for BAE and PAL federally authorized environmental person identified in the ‘‘For Further
effective periods, EPA does not expect programs in a manner that is no less Information Contact’’ section of this
any interference with the NAAQS from stringent than their federal counterparts. preamble for more information).
these revisions. . . . ’’ The opinion concludes that
‘‘[r]egarding § 10.1–1198, therefore, VI. Statutory and Executive Order
III. Proposed Action Reviews
documents or other information needed
EPA’s review of VADEQ’s 2015 NSR for civil or criminal enforcement under Under the CAA, the Administrator is
SIP Revision submittal indicates that it one of these programs could not be required to approve a SIP submission
is consistent with the CAA and all of its privileged because such documents and that complies with the provisions of the
implementing regulations. Therefore, information are essential to pursuing CAA and applicable federal regulations.
EPA is proposing to approve the enforcement in a manner required by 42 U.S.C. 7410(k); 40 CFR 52.02(a).
October 16, 2015 submittal, as amended federal law to maintain program Thus, in reviewing SIP submissions,
on March 1, 2017, as a revision to the delegation, authorization or approval.’’ EPA’s role is to approve state choices,
Virginia SIP. EPA is soliciting public Virginia’s Immunity law, Va. Code Sec. provided that they meet the criteria of
comments on the issues discussed in 10.1–1199, provides that ‘‘[t]o the extent the CAA. Accordingly, this action
this document. These comments will be consistent with requirements imposed merely approves state law as meeting
considered before taking final action. by federal law,’’ any person making a federal requirements and does not
IV. General Information Pertaining to voluntary disclosure of information to a impose additional requirements beyond
SIP Submittals From the state agency regarding a violation of an those imposed by state law. For that
Commonwealth of Virginia environmental statute, regulation, reason, this proposed action:
permit, or administrative order is • Is not a ‘‘significant regulatory
In 1995, Virginia adopted legislation granted immunity from administrative
that provides, subject to certain action’’ subject to review by the Office
or civil penalty. The Attorney General’s of Management and Budget under
conditions, for an environmental January 12, 1998 opinion states that the
assessment (audit) ‘‘privilege’’ for Executive Orders 12866 (58 FR 51735,
quoted language renders this statute October 4, 1993) and 13563 (76 FR 3821,
voluntary compliance evaluations inapplicable to enforcement of any
performed by a regulated entity. The January 21, 2011);
federally authorized programs, since • Does not impose an information
legislation further addresses the relative ‘‘no immunity could be afforded from
burden of proof for parties either collection burden under the provisions
administrative, civil, or criminal of the Paperwork Reduction Act (44
asserting the privilege or seeking penalties because granting such
disclosure of documents for which the U.S.C. 3501 et seq.);
immunity would not be consistent with
privilege is claimed. Virginia’s • Is certified as not having a
federal law, which is one of the criteria
legislation also provides, subject to significant economic impact on a
for immunity.’’
certain conditions, for a penalty waiver Therefore, EPA has determined that substantial number of small entities
for violations of environmental laws Virginia’s Privilege and Immunity under the Regulatory Flexibility Act (5
when a regulated entity discovers such statutes will not preclude the U.S.C. 601 et seq.);
violations pursuant to a voluntary Commonwealth from enforcing its NSR • Does not contain any unfunded
compliance evaluation and voluntarily program consistent with the federal mandate or significantly or uniquely
discloses such violations to the requirements. In any event, because affect small governments, as described
Commonwealth and takes prompt and EPA has also determined that a state in the Unfunded Mandates Reform Act
appropriate measures to remedy the audit privilege and immunity law can of 1995 (Pub. L. 104–4);
violations. Virginia’s Voluntary affect only state enforcement and cannot • Does not have federalism
Environmental Assessment Privilege have any impact on federal enforcement implications as specified in Executive
Law, Va. Code Sec. 10.1–1198, provides authorities, EPA may at any time invoke Order 13132 (64 FR 43255, August 10,
a privilege that protects from disclosure its authority under the CAA, including, 1999);
documents and information about the for example, sections 113, 167, 205, 211 • Is not an economically significant
content of those documents that are the or 213, to enforce the requirements or regulatory action based on health or
product of a voluntary environmental prohibitions of the state plan, safety risks subject to Executive Order
assessment. The Privilege Law does not independently of any state enforcement 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
sradovich on DSK3GMQ082PROD with PROPOSALS2
extend to documents or information effort. In addition, citizen enforcement
that: (1) Are generated or developed under section 304 of the CAA is subject to Executive Order 13211 (66 FR
before the commencement of a likewise unaffected by this, or any, state 28355, May 22, 2001);
voluntary environmental assessment; (2) audit privilege or immunity law. • Is not subject to requirements of
are prepared independently of the section 12(d) of the National
assessment process; (3) demonstrate a V. Incorporation by Reference Technology Transfer and Advancement
clear, imminent and substantial danger In this proposed rule, EPA is Act of 1995 (15 U.S.C. 272 note) because
to the public health or environment; or proposing to include in a final EPA rule application of those requirements would
(4) are required by law. regulatory text that includes be inconsistent with the CAA; and
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![Federal Register / Vol. 82, No. 73 / Tuesday, April 18, 2017 / Proposed Rules 18275
• Does not provide EPA with the ADDRESSES: Comments and replies may —The company’s bonds are rated at
discretionary authority to address, as be submitted either via the Board’s e- least BBB by Standard & Poor’s and
appropriate, disproportionate human filing format or in the traditional paper Baa by Moody’s;
health or environmental effects, using format. Any person using e-filing should —The company’s stock is listed on
practicable and legally permissible attach a document and otherwise either the NYSE or the AMEX; and
methods, under Executive Order 12898 comply with the instructions at the E– —The company has paid dividends
(59 FR 7629, February 16, 1994). FILING link on the Board’s Web site, at throughout the review year. 1 I.C.C.2d
The SIP is not approved to apply on http://www.stb.gov. Any person at 1003–04; see also R.R. Cost of
any Indian reservation land as defined submitting a filing in the traditional Capital—2015, EP 558 (Sub-No. 19),
in 18 U.S.C. 1151 or in any other area paper format should send an original slip op. at 3 (STB served Aug. 5,
where EPA or an Indian tribe has and 10 copies to: Surface Transportation 2016).
demonstrated that a tribe has Board, Attn: Docket No. EP 664 (Sub- Proposed Rule
jurisdiction. In those areas of Indian No. 3), 395 E Street SW., Washington,
country, the rule, pertaining to DC 20423–0001. Copies of written The Board proposes to revise the
Virginia’s preconstruction permitting comments and replies will be available fourth screening criterion, which
requirements does not have tribal for viewing and self-copying at the currently requires that a company’s
implications and will not impose Board’s Public Docket Room, Room 131, stock be listed on either the NYSE or the
substantial direct costs on tribal and will be posted to the Board’s Web AMEX. The AMEX was acquired in
governments or preempt tribal law as site. October 2008 by NYSE Euronext, a now
specified by Executive Order 13175 (65 defunct Euro-American multinational
FOR FURTHER INFORMATION CONTACT:
FR 67249, November 9, 2000). financial services corporation that
Amy C. Ziehm, (202) 245–0391.
operated multiple securities exchanges.
List of Subjects in 40 CFR Part 52 Assistance for the hearing impaired is
As a result, the Board’s screening
Environmental protection, Air available through the Federal
criteria used to determine the composite
pollution control, Carbon monoxide, Information Relay Service (FIRS) at
railroad should be updated to reflect the
Incorporation by reference, (800) 877–8339.
current marketplace. The Board
Intergovernmental relations, Lead, SUPPLEMENTARY INFORMATION: One of the therefore proposes that the fourth
Nitrogen dioxide, Ozone, Particulate Board’s regulatory responsibilities is to screening criterion be amended to
matter, Reporting and recordkeeping determine annually the railroad remove the AMEX listing and instead
requirements, Sulfur oxides, Volatile industry’s cost of capital. The cost-of- require that a company’s stock be listed
organic compounds. capital figure represents the Board’s on either the NYSE or the NASDAQ, the
estimate of the average rate of return primary competitor to the NYSE.
Authority: 42 U.S.C. 7401 et seq.
needed to persuade investors to provide The NASDAQ is a robust and
Dated: March 21, 2017. capital to the freight rail industry. This reputable stock exchange, and the Board
Cecil Rodrigues, figure is an essential component of believes that it is a suitable replacement
Acting Regional Administrator, Region III. many of the Board’s core regulatory for the AMEX in the cost-of-capital
[FR Doc. 2017–07820 Filed 4–17–17; 8:45 am] responsibilities. determination. The NASDAQ is the
BILLING CODE 6560–50–P The Board calculates the cost of world’s second-largest stock exchange,
capital as the weighted average of the behind only the NYSE, and the NYSE
cost of debt and the cost of equity, with and NASDAQ combined account for the
SURFACE TRANSPORTATION BOARD the weights determined by the railroad major portion of all equities trading in
industry’s capital structure (the fraction North America. When the Board’s
49 CFR Chapter X of capital from debt or equity on a predecessor adopted the fourth
[Docket No. EP 664 (Sub-No. 3)] market-value basis). See Methodology to screening criterion, it did so to ‘‘insure
be Employed in Determining R.R. the availability of stock price data.’’
Revisions to the Cost-of-Capital Indus.’s Cost of Capital, EP 664, slip op. Railroad Cost of Capital—1984, 1
Composite Railroad Criteria at 6 (STB served Jan. 17, 2008). The I.C.C.2d at 1004. By requiring applicable
Board determines the railroad industry’s carriers to trade on either the NYSE or
AGENCY: Surface Transportation Board. cost of capital for a ‘‘composite the NASDAQ, the Board would ensure
ACTION: Notice of proposed rulemaking. railroad,’’ which is based on data from the availability of stock price data for
SUMMARY: To better reflect the current a sample of railroads. Pursuant to use in the Board’s computation of the
marketplace, the Surface Transportation Railroad Cost of Capital—1984, 1 rail industry’s cost of capital.3
Board (Board) is proposing to update I.C.C.2d 989 (1985), the sample includes Therefore, the Board seeks public
one of the screening criteria used to all railroads that meet the following comment on its proposal to require the
create the ‘‘composite railroad’’ for the criteria: listing of a company’s stock on either
Board’s annual cost-of-capital —The company is a Class I line-haul the NYSE or the NASDAQ for a railroad
determination. Specifically, the Board railroad; 1 to be included in the composite group
proposes that one of its screening —If the Class I railroad is controlled by to determine the industry’s cost of
criteria now require a company’s stock another company, the controlling capital.
to be listed on either the New York company is primarily a railroad Regulatory Flexibility Act. The
sradovich on DSK3GMQ082PROD with PROPOSALS2
Stock Exchange (NYSE) or the Nasdaq company and is not already included Regulatory Flexibility Act of 1980
Stock Market (NASDAQ), rather than be in the study frame; 2 3 For its 2015 cost of capital calculation, the
listed on either the NYSE or American Board waived its requirement that a company’s
Stock Exchange (AMEX), as the AMEX 1 For the definition of a Class I railroad, see fn.
stock be listed on either the NYSE or the AMEX,
is no longer in existence. 4, infra. noting that CSX Corporation (CSX) transferred its
2 A company is considered to be primarily in the stock exchange listing from the NYSE to the
DATES: Comments are due by May 18,
railroad business if at least 50% of its total assets NASDAQ in 2015. R.R. Cost of Capital—2015, EP
2017. Reply comments are due by June are devoted to railroad operations. Railroad Cost of 558 (Sub-No. 19), slip op. at 2 n.5 (STB served Mar.
19, 2017. Capital—1984, 1 I.C.C.2d at 1003–04. 10, 2016).
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Document Created: 2017-04-18 00:00:10
Document Modified: 2017-04-18 00:00:10
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Written comments must be received on or before May 18, 2017. | |
| Contact | David Talley, (215) 814-2117, or by email at [email protected] | |
| FR Citation | 82 FR 18272 | |
| 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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