[Federal Register Volume 63, Number 55 (Monday, March 23, 1998)]
[Rules and Regulations]
[Pages 13795-13798]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-7305]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[VA025-5033; FRL-5977-9]
Approval and Promulgation of Air Quality Implementation Plans;
Commonwealth of Virginia--Prevention of Significant Deterioration
Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving a revision to the Commonwealth of Virginia's
State Implementation Plan (SIP) under which the Commonwealth will be
implementing the Prevention of Significant Deterioration of Air Quality
program (PSD program) pursuant to its own SIP regulations. The
Commonwealth had been implementing the PSD program under the terms of
an EPA delegation to the Commonwealth of the authority to implement the
Federal PSD regulations. Under the PSD program those constructing new
major sources of a criteria air pollutant in areas that are attainment
for the National Ambient Air Quality Standards (NAAQS) set for that
pollutant, or constructing major modifications to such sources in such
areas, must demonstrate that emissions from those sources will not
cause violations of the NAAQS, or significantly deteriorate air quality
beyond specified ambient increments, and that the emissions will be
controlled by Best Available Control Technology (BACT). Additional
provisions relevant to Class I areas may also apply.
EFFECTIVE DATE: This final rule is effective on April 22, 1998.
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours at the Air
Protection Division, U.S. Environmental Protection Agency, Region III,
841 Chestnut Building, Philadelphia, Pennsylvania 19107; the Air and
Radiation Docket and Information Center, U.S. Environmental Protection
Agency, 401 M Street, SW., Washington, DC 20460; and the Virginia
Department of Environmental Quality, 629 East Main Street, Richmond,
Virginia, 23219.
FOR FURTHER INFORMATION CONTACT: Ray Chalmers, U.S. EPA Region III, Air
Protection Division, Permits & Technology Assessment Section (3AP11),
841 Chestnut Building, Philadelphia, PA. Phone: (215) 566-2061.
Internet: ``Chalmers.Ray@epamail.epa.gov''.
SUPPLEMENTARY INFORMATION:
I. Background
In a series of submittals, the Virginia Department of Air Pollution
Control (DAPC), now known as the Department of Environmental Quality
(VDEQ), submitted the elements for a revision to its State
Implementation Plan (SIP) that would establish a program for the
prevention of significant deterioration of air quality (PSD) for the
review and permitting of new major sources and major modifications (the
PSD program). On January 24, 1996, EPA proposed to disapprove or, in
the alternative, to conditionally approve Virginia's PSD SIP revision.
(61 FR 1880). EPA proposed disapproval because, in the agency's view,
the Commonwealth's limitation of access to state judicial appeal (also
known as standing) of permitting actions was inconsistent with the
agency's interpretation that existing law and regulations require an
opportunity for state judicial review under approved PSD SIPs by permit
applicants and affected members of the public. In EPA's proposed rule,
comment was solicited on the agency's view that a limited judicial
review did not meet the minimum requirements for standing required for
PSD SIP programs under the Clean Air Act (CAA) and EPA`s implementing
regulations.
Alternatively, if the agency determined after reviewing public
comment that provisions for judicial standing were unnecessary, EPA
proposed to conditionally approve Virginia's PSD SIP. EPA determined
that Virginia was still required to amend the Commonwealth's PSD
regulations that existed at the time of the proposed rule to include
revised increments for particulate matter (PM) as promulgated by EPA on
June 3, 1993, and EPA's revised ``Guidelines for Air Quality Models'',
promulgated on July 20, 1993. More detailed information on EPA's
proposed rulemaking actions and an analysis of Virginia's PSD
regulations can be found in the proposed rule published on January 24,
1996 (61 FR 1880) and the Technical Support Document for the proposed
rule.
II. Analysis
Subsequent to the publication of EPA's proposed rule on Virginia's
PSD program, the deficiencies noted above were corrected. Regarding
judicial standing in Virginia, EPA published a December 5, 1994, final
rule in which EPA disapproved Virginia's Title V operating permits
program for, among other things, the failure to provide adequate
judicial standing. (59 FR 62324). Virginia appealed this decision
before the Fourth Circuit Court of Appeals, which affirmed EPA's
disapproval, 80 F.3d 869 (1996), and Virginia subsequently appealed its
case to the U.S. Supreme Court. On January 21, 1997, the Supreme Court
decided not to hear Virginia's case. In preparation for this
eventuality, Virginia had previously adopted revised and acceptable
judicial standing provisions, at sections 10.1-1318, 10.1-1457, and
62.1-44.29 of the Code of Virginia, but specified that the revised
provisions would become effective only if Virginia's suit against EPA
was unsuccessful. The Supreme Court's refusal to take Virginia's appeal
has caused Virginia's revised judicial standing provisions to become
effective, and Virginia's standing provisions are now fully acceptable.
Virginia's revised standing law now provides judicial standing to any
person who ``meets the standard for judicial review of a case or
controversy pursuant to Article III of the United States
Constitution.'' It further provides that ``a person shall be deemed to
meet such standard if: (i) Such person has suffered an actual or
imminent injury which is an invasion of a legally protected interest
and which is concrete and particularized; (ii) such injury is fairly
traceable to the decision of the Board and not the result of the
independent action of some third party not before the court; and (iii)
such injury will likely be redressed by a favorable decision by the
court.'' This new standard is consistent with the standard for Article
III standing articulated by the Supreme Court in Lujan v. Defenders of
Wildlife, 112 S. Ct. 2130 (1992). Consequently, EPA has determined that
Virginia's standing provisions meet the requirements of the CAA and 40
CFR 51.166.
On February 6, 1997 Virginia submitted to EPA an Attorney General's
Opinion affirming that the revised standing law would go into effect on
[[Page 13796]]
February 15, 1997. This action on the part of the Commonwealth corrects
any deficiency in standing that might have been determined by EPA as a
result of reviewing public comment on this issue. The Commonwealth also
submitted revised regulations on March 20, 1997 that corrected the
deficiencies identified with the proposed conditional approval. Since
the deficiencies identified in EPA's proposed rule no longer exist, EPA
is taking action to fully approve Virginia's PSD program as a SIP
revision.
After making its original PSD submittal to EPA on December 17,
1992, 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 does not extend
to documents or information that are: (1) Generated or developed before
the commencement of a voluntary environmental assessment; (2) that are
prepared independently of the assessment process; (3) that demonstrate
a clear, imminent and substantial danger to the public health or
environment; or (4) that are required by law.
On December 29, 1997, the Office of the Attorney General provided a
legal opinion that states, with regard to the Privilege law, that the
Commonwealth is ``required by Federal law to have full authority to
enforce'' the PSD program, ``both civilly and criminally,'' therefore,
``all aspects of Virginia's environmental laws and regulations that are
necessary to implement and enforce its PSD program in a manner that is
no less stringent than its Federal counterpart are necessarily
``required by law.'' Thus, ``[r]egarding Sec. 10.1-1198, documents or
information needed for civil or criminal enforcement under the PSD
program could not be privileged * * *''
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 December 29,
1997 opinion states that the quoted language renders this statute
inapplicable to PSD enforcement.
Thus, EPA has determined that Virginia's Privilege and Immunity
legislation will not preclude the Commonwealth from enforcing its PSD
program consistent with the CAA's requirements.
III. Response to Comments
EPA received comments supporting EPA's proposed disapproval of the
Commonwealth's PSD SIP from environmental, public interest, and legal
action organizations, and from private citizens. Each of these groups
and citizens stressed that EPA should not approve Virginia's PSD SIP
because Virginia had not provided all interested and qualified parties
with the legal standing to challenge PSD permitting actions in State
courts or through administrative appeal. EPA also received adverse
comment related to the proposed disapproval from the Commonwealth of
Virginia and several groups representing business and industrial
sources. The latter alternatively indicated their support of the
proposed conditional approval.
Although EPA solicited comment on whether or not legal standing
should be grounds for disapproving Virginia's PSD program, Virginia's
adoption of revised standing provisions, as noted above, eliminates the
need to consider this issue prior to taking a final rulemaking action
on the PSD SIP. Therefore, EPA is not commenting or otherwise
announcing a decision on this matter at this time.
One environmental group commented in favor of EPA's disapproval of
the Commonwealth's PSD SIP because it believed that the Commonwealth's
Air Board was ``* * * unprepared to assume responsibility for
implementation of the state's PSD program in the absence of a large EPA
presence * * *'' 40 CFR part 51 and section 110 of the Clean Air Act
establish criteria by which EPA is to evaluate and approve a State
Implementation Plan. EPA has determined that the Commonwealth has met
the requirements of section 110 and 40 CFR part 51 and has the
resources and necessary authority to carry out a PSD program. In fact,
the Commonwealth has been implementing the Federal PSD program since
1981 under an EPA delegation of authority. Should EPA identify
deficiencies in the Commonwealth's PSD program whereby the Commonwealth
can no longer demonstrate that its program meets the criteria
established under section 110 of the Clean Air Act and the regulations
in part 51, EPA has the authority to withdraw its approval.
In addition, while EPA is approving the Commonwealth's PSD SIP, EPA
recognizes that it has a responsibility to insure that all States
properly implement their preconstruction permitting programs. EPA's
approval of the Commonwealth's PSD program does not divest the Agency
of the duty to continue appropriate oversight to insure that PSD
determinations made by Virginia are consistent with the requirements of
the CAA, EPA regulations, and the SIP. EPA's authority to oversee PSD
program implementation is set forth in sections 113, 167, and 505(b) of
the Act. For example, section 167 provides that EPA shall issue
administrative orders, initiate civil actions, or take whatever other
enforcement action may be necessary to prevent construction of a major
stationary source that does not ``conform to the requirements of'' the
PSD program. Similarly, section 113(a)(5) provides for administrative
orders and civil actions whenever EPA finds that a State ``is not
acting in compliance with'' any requirement or prohibition of the Act
regarding construction of new or modified sources. Likewise, section
113(a)(1) provides for a range of enforcement remedies whenever EPA
finds that a person is in violation of an applicable implementation
plan.
Enactment of Title V of the CAA and the EPA objection opportunity
provided therein has added new tools for addressing deficient new
source review decisions by states. Section 505(b) requires EPA to
object to the issuance of a permit issued pursuant to Title V whenever
the Administrator finds during the applicable review period, either on
her own initiative or in response to a citizen petition, that the
permit is ``not in compliance with the requirements of an applicable
requirement of this Act, including the requirements of an applicable
implementation plan.''
Regardless of whether EPA addresses deficient permits using
objection authorities or enforcement authorities or
[[Page 13797]]
both, EPA cannot intervene unless the state decision fails to comply
with applicable requirements. Thus, EPA may not intrude upon the
significant discretion granted to states under new source review
programs, and will not ``second guess'' state decisions. Rather, in
determining whether a Title V permit incorporating PSD provisions calls
for EPA objection under section 505(b) or use of enforcement
authorities under sections 113 and 167, EPA will consider whether the
applicable substantive and procedural requirements for public review
and development of supporting documentation were followed. In
particular, EPA will review the process followed by the permitting
authority in determining best available control technology, assessing
air quality impacts, meeting Class I area requirements, and other PSD
requirements, to ensure that the required SIP procedures (including
public participation and Federal Land Manager consultation
opportunities) were met. EPA will also review whether any determination
by the permitting authority was made on reasonable grounds properly
supported on the record, described in enforceable terms, and consistent
with all applicable requirements. Finally, EPA will review whether the
terms of the PSD permit were properly incorporated into the operating
permit.
IV. Today's Action
EPA is approving a SIP revision submitted by the Commonwealth of
Virginia establishing a preconstruction permitting program for the
prevention of significant deterioration as required by section 110 of
the Clean Air Act. EPA is amending 40 CFR 52.2420 to incorporate this
revision into Virginia's SIP. At the same time, EPA is withdrawing from
Virginia's SIP the Federal PSD requirements which EPA incorporated into
Virginia's SIP on August 7, 1980, and is withdrawing the Commonwealth's
authority to implement these Federal PSD program requirements, an
authority which EPA delegated to the Commonwealth on June 3, 1981.
Accordingly, after the effective date of this final rule the
Commonwealth will issue PSD permits under the authority of its SIP-
approved program. The PSD permits which the Commonwealth issued prior
to this rule under its delegated authority to implement the Federal PSD
requirements continue in effect.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any state implementation plan. Each request for revision to
the state implementation plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
V. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866 review.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C.603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000. SIP approvals under section 110 and subchapter I, part D of the
Clean Air Act do not create any new requirements but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP approval does not impose any new requirements, EPA
certifies that it does not have a significant impact on any small
entities affected. Moreover, due to the nature of the Federal-State
relationship under the CAA, preparation of a flexibility analysis would
constitute Federal inquiry into the economic reasonableness of state
action. The Clean Air Act forbids EPA to base its actions concerning
SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246,
255-66 (1976); 42 U.S.C. 7410(a)(2).
C. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
private sector, of $100 million or more. Under section 205, EPA must
select the most cost-effective and least burdensome alternative that
achieves the objectives of the rule and is consistent with statutory
requirements. Section 203 requires EPA to establish a plan for
informing and advising any small governments that may be significantly
or uniquely impacted by the rule.
EPA has determined that the approval action being promulgated does
not include a Federal mandate that may result in estimated costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This Federal action approves
pre-existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
D. Submission to Congress and the General Accounting Office
Under section 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
E. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action approving the Commonwealth of Virginias
PSD SIP must be filed in the United States Court of Appeals for the
appropriate circuit by May 22, 1998. Filing a petition for
reconsideration by the Administrator of this final rule approving the
Commonwealth of Virginia's PSD SIP does not affect the finality of this
rule for the purposes of judicial review nor does it extend the time
within which a petition for judicial review may be filed, and shall not
postpone the effectiveness of such rule or action. This action
approving the Commonwealth of Virginia's PSD SIP may not be challenged
later in proceedings to enforce its requirements. (See section
307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Nitrogen
dioxide, Ozone, Particulate matter, Sulfur oxides.
Dated: February 27, 1998.
Thomas C. Voltaggio,
Acting Regional Administrator, Region III.
Chapter I, title 40, of the Code of Federal Regulations is amended
as follows:
[[Page 13798]]
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart VV--Virginia
2. Section 52.2420 is amended by adding paragraph (c)(123) to read
as follows:
Sec. 52.2420 Identification of plan.
* * * * *
(c) * * *
(123) Revisions to the Virginia Regulations for the Prevention of
Significant Deterioration submitted on March 20, 1997 by the Department
of Environmental Quality:
(i) Incorporation by reference.
(A) Letter of March 20, 1997 from the Department of Environmental
Quality transmitting a SIP revision for regulations for the Prevention
Significant Deterioration.
(B) Letter of February 18, 1993 from the Department of Air
Pollution Control transmitting a SIP revision for regulations defining
the prevention of significant deterioration areas.
(C) Letter of January 13, 1998 from the Depart of Environmental
Quality transmitting a SIP revisions to the Virginia Administrative
Code numbering system.
(D) The following provisions of the Virginia Regulations for the
Control and Abatement of Air Pollution:
(1) Regulations for Permits for Major Stationary Sources and Major
Modifications Locating in Prevention of Significant Deterioration
Areas, 9 VAC 5-80-1700 through 9 VAC 5-80-1970, published in the
Virginia Register of Regulations on November 25, 1996, effective
January 1, 1997.
(2) Appendix L to VR 120-01, renumbered as 9 VAC 5-20-205,
Prevention of Significant Deterioration Areas, published in the
Virginia Register of Regulations on December 2, 1991, effective January
1, 1992.
(ii) Additional material.
(A) Remainder of March 20, 1997 State submittal.
3. Section 52.2451 is revised to read as follows:
Sec. 52.2451 Significant deterioration of air quality.
(a) The requirements of sections 160 through 165 of the Clean Air
Act are met since the plan includes approvable procedures for the
Prevention of Significant Air Quality Deterioration.
(b) Regulations for preventing significant deterioration of air
quality. The provisions of Sec. 52.21(b) through (w) are hereby removed
from the applicable state plan for the Commonwealth of Virginia.
[FR Doc. 98-7305 Filed 3-20-98; 8:45 am]
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