[Federal Register Volume 64, Number 14 (Friday, January 22, 1999)]
[Rules and Regulations]
[Pages 3425-3427]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1263]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[VA 061-5039; FRL-6218-5]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Approval of Source Specific VOC RACT for Tuscarora
Incorporated
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision
submitted by the Commonwealth of Virginia. This revision requires
Tuscarora Incorporated, a major source of volatile organic compounds
(VOCs), to implement reasonably available control technology (RACT).
The intended effect of this action is to grant approval of a source-
specific Consent Agreement submitted by the Commonwealth of Virginia to
impose RACT requirements in accordance with the Clean Air Act.
DATES: This final rule is effective on March 23, 1999, without further
notice, unless EPA receives adverse comments by February 22, 1999. If
adverse comments are received, EPA will publish a timely withdrawal of
the direct final rule in the Federal Register and inform the public
that the rule will not take effect.
ADDRESSES: Written comments should be addressed to David Arnold, Chief,
Ozone and Mobile Sources Branch, Mailcode 3AP21, U.S. Environmental
Protection Agency, Region III, 1650 Arch Street, Philadelphia,
Pennsylvania 19103. 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, P.O. Box 10009, 629 East Main Street,
Richmond, Virginia 23219.
FOR FURTHER INFORMATION CONTACT: Janice M. Lewis, (215) 814-2185, at
the EPA Region III address above, or via e-mail at
[email protected]. While information may be requested via e-mail,
any comments must be submitted in writing to the EPA Region III address
above.
SUPPLEMENTARY INFORMATION:
I. Background
On July 12, 1996, the Commonwealth of Virginia, Department of
Environmental Quality (VADEQ) submitted a source-specific VOC RACT
determination for Tuscarora Incorporated located in Loudoun County.
Loudoun County is in the Northern Virginia portion of the Metropolitan
Washington D.C. serious ozone nonattainment area. Within this
nonattainment area, all sources of VOC with the potential to emit 50TPY
or more are considered major sources and subject to RACT. Because
Tuscarora Incorporated is not subject to RACT under Virginia's
category-specific regulations developed for industrial categories
covered by Control Technique Guidelines (CTGs), it is termed a non-CTG
source. Therefore, VADEQ has determined and imposed RACT via a Consent
Agreement (Registration No. 71814) to meet the requirements of section
182 of the Clean Air Act.
II. Summary of the SIP Revision
Tuscarora Incorporated, a manufacturer of custom molded, foam
plastic packing, structural components and material handling products,
had pre-RACT uncontrolled VOC emissions of 105.2 TPY. These emissions
emanate from plant operations using the primary resin expandable
polystyrene (EPS) and from the occasional use of a polystyrene/
polyethylene copolymer known as ARCEL. The VADEQ determined that RACT
for the facility is the use of low and reduced VOC content EPS and
ARCEL beads. The Consent Agreement (Registration No.71814) requires,
among other things, that the EPS monthly weighted average percentage of
VOC shall not exceed 4.5% and that the ARCEL monthly weighted average
percentage of VOC shall not exceed 8.5%. The use of low and reduced VOC
concentrations in EPS and ARCEL beads reduces potential VOC emissions
by 31%. The Consent Agreement requires that Tuscarora Incorporated keep
a daily detailed material log which documents the percentage of VOC
contained in the EPS and ARCEL material processed at the facility. The
log must provide sufficient information to determine compliance with
the conditions of the Consent Agreement. The log must be available on
site and must be current for the most recent five years. Additional
details of the RACT determination may be found in VADEQ's submittal and
the technical support document (TSD) prepared to support this
rulemaking. Copies of these materials are available, upon request, from
the EPA Regional office listed in the ADDRESSES section of this
document.
EPA is approving Consent Agreement No. 71814 issued by VADEQ to
Tuscarora Incorporated to impose RACT for VOCS as a revision to the
Virginia SIP.
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
[[Page 3426]]
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 January 12, 1997, the Commonwealth of Virginia Office of the
Attorney General provided a legal opinion that states that the
Privilege law 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. * * * '' 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.'' Thus, EPA has determined that Virginia's Privilege and
Immunity statutes will not preclude the Commonwealth from enforcing its
program consistent with the federal requirements.
EPA is approving this SIP revision without prior proposal because
the Agency views this as a noncontroversial amendment and anticipates
no adverse comments. However, in the proposed rules section of this
Federal Register publication, EPA is publishing a separated document
that will serve as the proposal to approve the SIP revision should
adverse or critical comments be filed. This SIP revision will be
effective March 23, 1999, without further notice unless the Agency
receives adverse comments by February 22, 1999.
If EPA receives such comments, then EPA will publish a document
withdrawing the final action and informing the public that the action
will not take effect. All public comments received will then be
addressed in a subsequent final action based on the proposed rule. EPA
will not institute a second comment period on the rule. Parties
interested in commenting on this action should do so at this time. If
no such comments are received, the public is advised that this SIP
revision will be effective on March 23, 1999, and no further action
will be taken on the proposed rule.
III. Final Action
EPA is approving the Consent Agreement, Registration Number 71814,
submitted by the Commonwealth of Virginia on July 12, 1996 as a SIP
revision.
IV. Administrative Requirements
A. Executive Order 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 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.
[[Page 3427]]
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 conditional approvals of
SIP submittals under section 110 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 regulation that includes a Federal mandate that may result in
estimated annual 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 proposed 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 federal
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 the Comptroller General of the United
States. Section 804, however, exempts from section 801 the following
types of rules: rules of particular applicability; rules relating to
agency management or personnel; and rules of agency organization,
procedure, or practice that do not substantially affect the rights or
obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required
to submit a rule report regarding today's action under section 801
because this is a rule of particular applicability, establishing
requirements only for Tuscarora Incorporated in Loudoun County,
Virginia.
H. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action to approve the VOC RACT determination
submitted by VADEQ for Tuscarora Incorporated must be filed in the
United States Court of Appeals for the appropriate circuit by March 23,
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, Ozone.
Dated: December 28, 1998.
Thomas Voltaggio,
Acting 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.
Subpart VV--Virginia
2. Section 52.2420 is amended by adding paragraph (c)(128) to read
as follows:
Sec. 52.2420 Identification of plan.
* * * * *
(c) * * *
(128) Revision to the State Implementation Plan submitted on July
12, 1996 by the Virginia Department of Environmental Quality regarding
VOC RACT requirements for one VOC source.
(i) Incorporation by reference.
(A) The letter dated July 12, 1996 from the Virginia Department of
Environmental Quality submitting one source-specific VOC RACT
determination in the form of a Consent Agreement for Tuscarora
Incorporated.
(B) Consent Agreement for Tuscarora Incorporated--Sterling, Loudoun
County, VA, Consent Agreement, Registration Number 71814, effective on
June 5, 1996.
(ii) Additional Material: Remainder of the State submittal
pertaining to Tuscarora Incorporated.
[FR Doc. 99-1263 Filed 1-21-99; 8:45 am]
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