[Federal Register Volume 64, Number 182 (Tuesday, September 21, 1999)]
[Rules and Regulations]
[Pages 51047-51051]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-24454]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[VA 022-5040; FRL-6436-8]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; New Source Review in Nonattainment Areas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is granting limited approval of a State Implementation
Plan (SIP) revision submitted by the Commonwealth of Virginia to revise
its new source review (NSR) regulations for nonattainment areas to
bring them into conformance with the Clean Air Act (CAA) Amendments
adopted in 1990, and to make other changes desired by the Commonwealth.
Virginia's NSR regulations for nonattainment areas require persons to
meet certain requirements before constructing a new major source or
major modification in a nonattainment area. The intended effect of this
action is to grant limited approval of Virginia's NSR regulation as a
SIP revision under the CAA.
[[Page 51048]]
EFFECTIVE DATE: This final rule is effective on Ocotber 21, 1999.
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,
1650 Arch Street, Philadelphia, Pennsylvania 19103; the Air and
Radiation Docket and Information Center, U.S. Environmental Protection
Agency, 401 M Street, SW, Washington, DC 20460; and Virginia Department
of Environmental Quality, 629 East Main Street, Richmond, Virginia.
FOR FURTHER INFORMATION CONTACT: Donna Weiss, Environmental Engineer,
(215) 814-2198 or by e-mail at weiss.donna@epa.gov.
SUPPLEMENTARY INFORMATION:
A. Background
On March 23, 1998 (63 FR 13811), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed
limited approval of revisions to Virginia's NSR regulations (Section
120-08-03). No comments were received on the NPR.
B. Summary of the SIP Revision
Virginia submitted the formal SIP revision on November 9, 1992. The
significant changes to Section 120-08-03 are summarized below:
Section 120-08-03 A--Applicability (amended)--Virginia has modified
this subsection by including a provision to deter a company from
constructing or modifying a facility in increments to avoid permit
requirements.
Section 120-08-03 B--Definitions (amended)--Virginia has modified
many of the definitions found in this subsection. Key changes were made
to the following terms: ``Allowable Emissions'', ``Building, structure
facility or installation'', ``Federally enforceable'', ``Major
Modification'', ``Major Stationary Source'', ``Net emissions
increase'', ``Nonattainment pollutant'', ``Potential to Emit'',
``Reconstruction'', and ``Significant''.
Section 120-08-03 C--General (amended)--Virginia modified the
general subsection by adding a provision stating that it may combine in
one permit the requirements for emissions units subject to more than
one of Virginia's regulatory requirements applicable to permitting, and
that Virginia may also require a combined application for such
emissions units. The permitting requirements for which such combined
permits and applications may be required include those of Virginia's
NSR regulation for sources locating in nonattainment areas and those of
two other Virginia regulations, entitled, ``Permits--New and Modified
Sources,'' and ``Permits--Major Stationary Sources and Major
Modifications Locating in Prevention of Significant Deterioration
Areas.''
Section 120-08-03 D--Applications (amended)--Virginia modified the
applications subsection by revising its specification of the scope of
permit applications. Virginia also added provisions defining who must
sign permit applications and requiring the signer to certify that ``the
information submitted is, to the best of my knowledge and belief, true,
accurate, and complete.''
Section 120-08-03 F--Standards/Conditions for Granting Permits
(amended)--Virginia made several changes in the standards and
conditions subsection, which establishes the requirements which must be
met before a permit can be issued.
Section 120-08-03 G--Action on Permit application (amended)--
Virginia amended this subsection to specify that Virginia must notify
applicants in writing of deficiencies in their permit applications.
Virginia also deleted certain public participation provisions from this
section which it now includes in a separate section of the regulation;
and revised its description of permit processing steps by including in
the description a reference to public participation requirements found
elsewhere in the regulation.
Section 120-08-03 H--Public Participation (added)--Virginia added a
new subsection detailing public participation requirements. This
subsection requires the applicant to provide the public with notice of
its application for a permit and then, within 30 to 60 days, to provide
a public briefing. In addition, the subsection provides that Virginia
must provide a public comment period of at least 30 days, and hold a
public hearing, before it makes a decision on a permit application.
Section 120-08-03 I--Compliance Determination verification by
Performance Testing (amended, formerly designated as Section 120-08-03
H, this section replaces the original Section 120-08-03 I, which was
deleted)--Virginia modified this subsection by specifying that source
owners are responsible for conducting tests if any such tests are
required.
Section 120-08-03 J--Application Review and Analysis (formerly
designated as Section 120-08-03 K, this section replaces the original
Section 120-08-03 J, which was deleted)--Virginia made no changes to
this subsection.
Section 120-08-03 K--Circumvention (formerly designated as Section
120-08-03 L)--Virginia made no changes to this subsection.
Section 120-08-03 L--Interstate Pollution Abatement (formerly
designated as Section 120-08-03 M)--Virginia made no changes to this
subsection.
Section 120-08-03 M--Offsets (amended, formerly designated as
Section 120-08-03 N)--Virginia allows the crediting of emission
reductions resulting from shutting down an existing source or
curtailing production or operating hours below baseline levels if the
shutdown or curtailment is in effect, if it occurred on or after
January 1, 1991, and if it is permanent, quantifiable, and federally
and state enforceable. Virginia requires that the increased emissions
of the air pollutant(s) from the new or modified source must be offset
by an equal or greater reduction in the actual emissions of such air
pollutant(s) from the same or other sources. Virginia allows reductions
to be credited only if they are not otherwise required by its
regulations. Virginia does allow incidental emission reductions to be
credited, provided they are not required by regulation and meet certain
other requirements. In this section Virginia also includes a special
provision allowing increases in emissions from rocket engine and motor
firing to be offset by alternative or innovative means.
Section 120-08-03 N--De minimis increases and stationary source
modification alternatives for ozone nonattainment areas classified as
serious or severe (added)--Virginia specifies in this new subsection
that VOC emissions increases resulting from modifications at sources in
serious or severe ozone nonattainment areas cannot be considered de
minimis unless the increase in net emissions does not exceed 25 TPY
when aggregated with all other net increases in emissions from the
source over any period of 5 consecutive calendar years which includes
the calendar year in which such increase occurred.
Section 120-08-03 Q--Reactivation and Permanent shutdown (added)
Virginia specifies in this new subsection that a source which is
reopened after having been determined to be shutdown must obtain a
permit. Virginia also sets forth criteria by which sources are formally
determined to be shutdown.
Section 120-08-03 R--Transfer of Permits (added)--Virginia
establishes in
[[Page 51049]]
this new subsection provisions pertaining to transfer of permits.
Section 120-08-03 S--Permit Invalidation, Revocation, and
Enforcement (added)--Virginia sets forth in this new subsection the
conditions under which owners of sources subject to permitting
requirements may be subject to enforcement action and when permits may
be invalidated or revoked.
Section 120-08-03 T--Existence of Permit No Defense (added)--
Virginia specifies in this new subsection that the existence of a
permit under this section shall not constitute a defense to a violation
of the Virginia Air Pollution Control Law or these regulations and
shall not relieve any owner of the responsibility to comply with any
applicable regulations, laws, ordinances and orders of the governmental
entities having jurisdiction.
C. EPA's Evaluation of the SIP Revision
EPA has determined that the amendments to Virginia's NSR
regulations are consistent with the CAA and currently promulgated
federal NSR regulations with one exception. Virginia's NSR regulation
allows persons who intend to build or modify a major source in a
nonattainment area to take credit for emission reductions obtained from
shutdowns or curtailments of production or operating hours which took
place prior to the source's application for a new source review permit
(prior to shutdown or curtailment credits) even if EPA has not yet
approved an attainment plan for the nonattainment area. The shutdown
may not predate the design year of the required attainment plan.
Although EPA's existing regulations do not allow for this, EPA proposed
revisions to its NSR and PSD regulations on July 23, 1996, which
proposes an option which is consistent with Virginia's revised
regulation. Based on this fact, as well as the fact that the revisions
strengthen Virginia's SIP, EPA is granting limited approval of these
regulatory revisions. EPA has provided a more detailed analysis on this
issue in the March 23, 1998 NPR referenced above.
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 (1) that are 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 January 12, 1997, 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,
1997 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 Clean Air Act, 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 Clean Air Act is
likewise unaffected by this, or any, state audit privilege or immunity
law.
Other specific requirements of Virginia's revisions and the
rationale for EPA's proposed action are explained in the NPR and will
not be restated here. No public comments were received on the NPR.
II. Final Action
EPA is granting limited approval of amendments to 120-08-03.
``Permits--major stationary sources and major modifications locating in
nonattainment areas' submitted by the Commonwealth of Virginia on
November 9, 1992.
III. Administrative Requirements
A. Executive Orders 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from review under E.O. 12866, entitled ``Regulatory
Planning and Review.''
B. Executive Order 12875
Under E.O. 12875, EPA may not issue a regulation that is not
required by statute and that creates a mandate upon a state, local, or
tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments. If EPA complies by consulting, E.O. requires EPA to
provide to the Office of Management and Budget a description of the
extent of EPA's prior consultation with representatives of affected
state, local, and tribal governments, the nature of their concerns,
copies of written communications from the governments, and a statement
supporting the need to issue the regulation. In addition, E.O. 12875
requires EPA to develop an effective process permitting elected
officials and other representatives of
[[Page 51050]]
state, local, and tribal governments ``to provide meaningful and timely
input in the development of regulatory proposals containing significant
unfunded mandates.'' Today's rule does not create a mandate on state,
local or tribal governments. The rule does not impose any enforceable
duties on these entities. Accordingly, the requirements of section 1(a)
of E.O. 12875 do not apply to this rule.
C. Executive Order 13045
E.O. 13045, entitled ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies
to any rule that the EPA determines (1) is ``economically
significant,'' as defined under E.O. 12866, and (2) the environmental
health or safety risk addressed by the rule has a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency. This final rule is not subject
to E.O. 13045 because it is not an economically significant regulatory
action as defined by E.O. 12866, and it does not address an
environmental health or safety risk that would have a disproportionate
effect on children.
D. Executive Order 13084
Under E.O. 13084, EPA may not issue a regulation that is not
required by statute, that significantly affects or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments. If EPA complies by
consulting, Executive Order 13084 requires EPA to provide to the Office
of Management and Budget, in a separately identified section of the
preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected and
other representatives of Indian tribal governments ``to provide
meaningful and timely input in the development of regulatory policies
on matters that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the communities
of Indian tribal governments. This action does not involve or impose
any requirements that affect Indian Tribes. Accordingly, the
requirements of section 3(b) of E.O. 13084 do not apply to this rule.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. This final rule will not have a significant impact on a
substantial number of small entities because SIP approvals under
sections 110 and 301, and subchapter I, part D of the CAA 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, I certify 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 Clean Air Act,
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).
F. 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
annual 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 promulgated does not include a Federal mandate that
may result in estimated annual 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.
G. 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 rule 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. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
H. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action granting limited approval of Virginia's NSR regulations
must be filed in the United States Court of Appeals for the appropriate
circuit by November 22, 1999. Filing a petition for reconsideration by
the Administrator of this final rule 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 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, Hydrocarbons,
Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements.
Dated: September 3, 1999.
W. Michael McCabe,
Regional Administrator, Region III.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
[[Page 51051]]
Subpart VV--Virginia
2. Section 52.2420 is amended by adding paragraph (c)(129) to read
as follows:
Sec. 52.2420 Identification of plan.
* * * * *
(c) * * *
(129 ) Revisions to the Virginia Regulations pertaining to permit
requirements for new and modified stationary sources locating in
nonattainment areas mandated under Title I, Sections 171-173 and 182 of
the Clean Air Act submitted on November 9, 1992, by the Commonwealth of
Virginia:
(i) Incorporation by reference.
(A) Letter of November 9, 1992, from the Commonwealth of Virginia,
Department of Air Pollution Control transmitting revisions to the
Virginia Regulations pertaining to permit requirements for new and
modified stationary sources locating in nonattainment areas.
(B) Commonwealth of Virginia State Air Pollution Control Board
Regulations for the Control and Abatement of Air Pollution, Permits for
Stationary Sources, Section 120-08-03. ``Permits--Major Stationary
Sources and Major Modifications Locating in Nonattainment Areas''.
(Effective January 1, 1993).
(ii) Additional materials--The remainder of the November 2, 1992
submittal pertaining to Regulation 120-08-03.
[FR Doc. 99-24454 Filed 9-20-99; 8:45 am]
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