[Federal Register Volume 61, Number 143 (Wednesday, July 24, 1996)]
[Rules and Regulations]
[Pages 38388-38390]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18645]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[VA032-5013, VA030-5014; FRL-5534-4]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Approval of Revised Confidentiality Provisions; Approval and 
Disapproval of Minor New Source Permit Provisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving in part and disapproving in part State 
Implementation Plan (SIP) revisions submitted by the Commonwealth of 
Virginia. This action proposes approval of changes submitted by 
Virginia in March 1993 to the provisions governing confidentiality of 
information. This action disapproves the public participation 
requirements associated with the permitting of minor new sources, and 
approves all other revisions to Virginia's revised new source permit 
provisions. The intended effect of this action is to approve those 
State provisions which meet the requirements of the Clean Air Act, and 
disapprove those State provisions which do not. This action is being 
taken under section 110 of the Clean Air Act.

EFFECTIVE DATE: This final rule is effective on August 23, 1996.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the 
Air, Radiation, and Toxics 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: Harold A. Frankford, (215) 566-2108 or 
FRANKFORD.HAROLD@ EPAMAIL.EPA.GOV.

SUPPLEMENTARY INFORMATION: On September 12, 1995 (60 FR 47320), EPA 
published a notice of proposed rulemaking (NPR) for the Commonwealth of 
Virginia. The NPR proposed approval of revised provisions of the 
Virginia Regulations for the Control and Abatement of Air Pollution, 
Sections 120-02-30 and 120-08-01 (except for Sections 120-08-01G.1 and 
-01G.4.b), as well as the definition of ``confidential information.'' 
EPA also proposed approval of the revised exemption levels of Appendix 
R, provided that Virginia supply additional documentation that the 
exemptions provided for wood manufacturing operations and wood sawmills 
are consistent with all applicable Agency criteria for minor new source 
permit programs. At the same time, EPA proposed to disapprove the 
public participation requirements set forth in Sections 120-08-01G.1 
and -01G.4.b, and retain in its place the current Virginia SIP-approved 
public participation provisions of Section 120-08-01C.4.a. The formal 
SIP revisions were submitted by Virginia on March 18, 1993 and March 
29, 1993.
    Other specific requirements of Sections 120-01-02C, 120-02-30, 120-
08-01, and Appendix R submitted March 18, 1993 and March 29, 1993, and 
the rationale for EPA's proposed action are explained in the NPR and 
will not be restated here. In addition, the following provisions of 
Section 120-08-01 govern sources that are not covered by the SIP, and 
have neither been reviewed nor evaluated as part of this SIP revision 
action:
    Sections 120-08-01C.1.b, 120-08-01G.4.a, 120-08-01H.1, 120-08-
01I.2, and 120-08-01J.2.

Summary of Public Comments and EPA Response

    During the public comment period, which ended on October 12, 1995, 
EPA received two comments. One commenter supported EPA's proposed 
action to disapprove the revised public participation requirements set 
forth in Section 120-08-01G.1 and 01G.4. The other commenter raised two 
issues regarding (1) The scope of the public participation provisions 
that the SIP should require and (2) the issue of federal enforceability 
in the definitions of ``allowable emissions'' and ``potential to 
emit.''
    The second commenter urged EPA to approve in its entirety the 
revised provisions to Section 120-08-01. With regard to the public 
participation issue, the commenter stated that the public participation 
provisions in 40 CFR section 51.161 should only apply to federally 
required new source review programs; they should not apply to the less 
environmentally significant sources subject to new source review. The 
commenter further stated its opinion that Virginia has provided 
reasonable public participation provisions in its proposed revised SIP, 
allowing public comment or hearing only for the most environmentally 
significant sources or modifications or sources which have the 
potential for public interest concerning air quality issues.
    However, this commenter also raised the issue that the wording of 
the definitions ``allowable emissions'' and ``potential to emit'' found 
in Section 120-08-01B is inconsistent with a recent U. S. Court of 
Appeals decision on the issue of federal enforceability [National 
Mining Association v. United States Environmental Protection Agency, 59 
F.3d 1351 (D.C. Cir. 1995)], and that EPA should address this issue. 
The SIP language requires that control requirements be both state and 
federally enforceable, while the Court decision holds that such control 
requirements are acceptable as long as they are either state 
enforceable or federally enforceable.
    EPA provides the following response:
    (1) With regard to the commenter's statement regarding EPA's 
disapproval action, EPA has determined that the thresholds which 
constitute environmentally significant modifications are specified in 
the definition of ``significant'' found in both 40 CFR section 
51.165(a)(1)(x) and Section 120-08-03C of Virginia's air pollution 
control regulations. The term

[[Page 38389]]

``significant'' is found in the definition of ``major modification,'' 
which is spelled out in Section 120-08-03C and cross-referenced in 
Section 120-08-01B. EPA had approved these definitions as a revision to 
the Virginia SIP on May 4, 1982 (47 FR 19134), and codified them into 
the SIP at Sec. 52.2420(c)(69). The effective date of this action was 
June 3, 1982. The exemptions specified in the revised wording of 
revised Sections 120-08-01G.1 and .01G.4.b exceed both EPA and 
Virginia's stated thresholds of ``significant''. In this same action, 
EPA had approved the current public participation provisions found in 
SIP Section 120-08-01C.4. Since these SIP-approved public participation 
provisions apply to the public participation requirements for all major 
modifications, while the wording of revised Sections 120-08-01G.1 and 
.01G.4.b do not, EPA's decision to disapprove the exemptions specified 
in Section 120-08-01G and retain the provisions of SIP Section 120-08-
01C.4 is not inconsistent with the commenter's recommendations.
    The wording of the definitions ``allowable emissions'' and 
``potential to emit'' found in revised Section 120-08-01 is consistent 
with the wording that has been part of the Virginia SIP since it was 
codified into the Virginia SIP at Sec. 52.2420(c)(69) [see above]. 
Accordingly, the court decision referred to by the commenter does not 
require EPA to revise these provisions in this action, since they 
represent both current State law and currently Federally-enforceable 
SIP wording.

Additional Information Provided by Virginia

    Virginia has also supplied the additional documentation requested 
by EPA pertaining to the impact of the exemptions provided for wood 
manufacturing operations and wood sawmills on the applicable Agency 
criteria for minor new source permit programs. In a March 18, 1996 
letter, Virginia stated that the sawmills and wood manufacturing 
operations being exempted from the permitting requirements will not 
significantly contribute to ambient levels of PM10 standards. 
Virginia reached this conclusion on the basis that (1) Most sawmill 
operations are located in highly rural areas, and (2) such operations 
would emit particulate matter whose size would exceed 10 microns, and 
therefore would not contribute to ambient PM10 levels. Currently, 
there are no PM10 nonattainment areas in Virginia.
    EPA has reviewed the emissions inventory available from the 
Aerometric Information Retrieval System (AIRS) database, and agrees 
with these conclusions. The inventory reveals the presence of 68 
sources that fall under SIC code 2491 [Sawmills and Planing Mills-
General]. However, fewer than 15 sources in the entire Commonwealth are 
classified solely as wood sawmills. All of these sources are classified 
as ``B'' or minor sources. Therefore, EPA is satisfied with Virginia's 
explanation that the exemptions found in Appendix R will not affect 
applicable ambient air quality levels or PSD increments.

Final Action

    EPA is approving the revisions to Virginia Regulations 120-08-02C 
(definition of ``confidential information'') and 120-02-30 submitted by 
Virginia on March 18, 1993, as well as the revisions to Section 120-08-
01 (except as noted below) and Appendix R submitted by Virginia on 
March 29, 1993 as revisions to the Virginia SIP. At the same time, EPA 
is disapproving the revisions to Section 120-08-01G.1 and G.4.b 
submitted by Virginia on March 29, 1993 as revisions of the Virginia 
SIP.
    Accordingly, EPA is revising 40 CFR 52.2420 (Identification of 
plan) to reflect EPA's approval action. At the same time, EPA is 
revising 40 CFR 52.2423 (Approval status) to (1) Make the public aware 
that in addition to Virginia's criteria, EPA has its own criteria (40 
CFR part 2) for determining what information submitted by a State in 
support of a Federal action (such as a SIP revision request) can be 
kept confidential; and (2) announce EPA's disapproval of revised 
provisions to Section 120-08-01G.1 and .01G.4.b as revisions of the 
Virginia SIP.
    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.
    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 that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the 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 costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal approval action 
approves pre-existing requirements under State or local law, and 
imposes no new Federal requirements. This Federal disapproval action 
maintains pre-existing Federal requirements that have been in effect 
since June 3, 1982. Accordingly, no additional costs to State, local, 
or tribal governments, or to the private sector, result from this 
action.
    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, the 
Administrator 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).
    Similarly, EPA's disapproval of portions of the State request under 
Section 110 and subchapter I, part D of the CAA does not affect any 
existing requirements applicable to small entities. Any pre-existing 
federal requirements remain in place after this disapproval. Federal 
disapproval of the state submittal does not affect its state-
enforceability. Moreover, EPA's disapproval of the submittal does not 
impose any new Federal requirements. Therefore, EPA certifies that this

[[Page 38390]]

disapproval action does not have a significant impact on a substantial 
number of small entities because it does not remove existing 
requirements and impose any new Federal requirements.
    Under section 801(a)(1)(A) of the Administrative Procedures Act 
(APA) as amended 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 section 804(2) of the 
APA as amended.
    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for 
Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from E.O. 12866 review.
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by September 23, 1996. 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 to approve Virginia's air quality 
provisions governing confidentiality of information requirements, as 
well as to partially approve and partially disapprove Virginia's air 
quality provisions governing minor new source permitting, 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, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur Oxides.

    Dated: June 21, 1996.
Stanely L. Laskowski,
Acting Regional Administrator, Region III.

    Chapter I, title 40, of the Code of Federal Regulations is amended 
as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

Subpart VV--Virginia

    2. Section 52.2420 is amended by adding paragraphs (c)(108) and 
(c)(109) to read as follows:


Sec. 52.2420  Identification of plan.

* * * * *
    (c) * * *
    (108) Revisions to the Virginia Regulations for the Control and 
Abatement of Air Pollution submitted on March 18, 1993 by the Virginia 
Department of Air Pollution Control:
    (i) Incorporation by reference.
    (A) Letter of March 18, 1993 from the Virginia Department of Air 
Pollution Control transmitting revisions governing confidentiality of 
information.
    (B) Revisions to Virginia regulations sections 120-01-02C. 
(definition of ``confidential information'') and 120-02-30 (revisions 
to paragraphs 30A. and 30B.; addition of paragraphs 120-02-30C. through 
30E.), adopted October 30, 1992 and effective February 1, 1993.
    (ii) Additional material.
    (A) Remainder of the March 18, 1993 State submittal pertaining to 
both the definition of ``confidential information'' and the revised 
provisions to Section 120-02-30.

(109) Revisions to the Virginia Regulations for the Control and 
Abatement of Air Pollution submitted on March 29, 1993 by the Virginia 
Department of Air Pollution Control:

    (i) Incorporation by reference.
    (A) Letter of March 29, 1993 from the Virginia Department of Air 
Pollution Control transmitting revisions governing confidentiality of 
information.
    (B) The following provisions of the Virginia regulations, adopted 
October 30, 1992 and effective January 1, 1993.
    (1) Revisions to Sections 120-08-01A.; 120-08-01C.4; 120-08-01D.; 
120-08-01F. [former SIP Section 120-08-01G.]; 120-08-01G. (except for 
paragraphs .01G.1, .01G.4.a, and .01G.4.b); 120-08-01H. (except for 
paragraph .01H.1) [former SIP Section 120-08-01F, except for paragraph 
.01F.2]; 120-08-01I. (except for paragraph .01I.2) [former SIP Section 
120-08-01L., except for paragraph .01L.2]; 120-08-01J. [former SIP 
Section 120-08-01H.]; 120-08-01K.; 120-08-01L. [former SIP Section 120-
08-01J.]; 120-08-01M. [former SIP Section 120-08-01K.]; 120-08-01P. 
[former SIP Section 120-08-01M.]; Addition of Sections 120-08-01N and 
120-08-01O.
    (2) Revisions to to following definitions in Section 120-08-01B.: 
``allowable emissions,'' ``commence,'' ``federally enforceable,'' 
``modification,'' ``potential to emit,'' ``secondary emissions'' and 
``stationary source.''
    (3) Revisions to Appendix R, Sections I (title only), II.A, II.P, 
II.Q (added), II.R (added), III.A, III.C, III.E, III.G, III.I, III.L, 
III.T, III.U, IV., V., and VIII.
    (ii) Additional material.
    (A) Remainder of the March 29, 1993 State submittal pertaining to 
the revisions to Section 120-08-01 (except for paragraphs .01G.1, 
.01G.4.a, .01G.4.b, .01H.1, .01I.2, and .01J.2) and Appendix R listed 
in paragraphs (c)(109)(i)(B) (1) through (3) of this section.
    (B) Letter of March 18, 1996 from the Virginia Department of 
Environmental Quality, Air Division, clarifying the effect of the 
exemption of wood sawmills from the provisions of Section 120-08-01 
(Appendix R, Section II.R).
* * * * *
    3. Section 52.2423 is amended by adding paragraphs (o) and (p) to 
read as follows:


Sec. 52.2423  Approval status.

* * * * *
    (o) EPA approves the revised confidentiality of information 
provisions of Sections 120-02-30, submitted by the Virginia Department 
of Air Pollution Control on March 18, 1993, as revisions to the 
Virginia SIP. However, should Virginia submit a SIP revision request on 
behalf of a source, which contains information that has been judged 
confidential under the provisions of Section 120-02-30, Virginia must 
request EPA to consider confidentiality according to the provisions of 
40 CFR part 2. EPA is obligated to keep such information confidential 
only if the criteria of 40 CFR part 2 are met.
    (p) EPA disapproves the revised public participation provisions of 
Sections 120-08-01G.1 and 120-08-01G.4.b, submitted by the Virginia 
Department of Air Pollution Control on March 29, 1993, as revisions to 
the Virginia SIP. These revised provisions do not meet the requirements 
of 40 CFR 51.160 and 51.161. In its place, EPA retains the SIP 
provisions of Section 120-08-01C.1.a and 01C.4.b through d. as 
originally approved at Secs. 52.2420(c)(69) [SIP section 
2.33(a)(5)(ii)] and subsequently revised, due to format changes, at 
Secs. 52.2420(c)(89)(i)(B)(7) [SIP section 120-08-01C.4.b].

[FR Doc. 96-18645 Filed 7-23-96; 8:45 am]
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