[Federal Register Volume 65, Number 196 (Tuesday, October 10, 2000)]
[Proposed Rules]
[Pages 60141-60143]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-25931]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[VA 4053; FRL-6883-5]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Approval of VOC and NOX RACT Determinations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve revisions to the Commonwealth of 
Virginia's State Implementation Plan (SIP) which would establish 
reasonably available control technology (RACT) requirements for 16 
major sources of volatile organic compound (VOC) and/or nitrogen oxide 
(NOX)emissions.

DATES: Written comments must be received on or before November 9, 2000.

ADDRESSES: Written comments may be mailed to Makeba Morris, Chief, 
Permits and Technical Assessment Branch, Mailcode 3AP11, 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 
and at the Virginia Department of Environmental Quality, 629 East Main 
Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Ray Chalmers, at (215) 814-2061, or by 
e-mail at [email protected]. Please note that while questions and 
requests for the Technical Support Document (TSD) prepared in support 
of this rulemaking may be submitted via e-mail, any comments on the 
proposed action must be submitted, in writing, to the Region III 
address as indicated above.

SUPPLEMENTARY INFORMATION:

I. Background Information Regarding RACT Requirements

    Pursuant to sections 182 and 184 of the Clean Air Act (CAA), States 
are required to implement RACT for major sources of volatile organic 
compounds (VOCs) and/or nitrogen oxides (NOX) emissions 
which are: (1) Located in those areas which have not attained the 
National Ambient Air Quality Standard for ozone (ozone nonattainment 
areas) which are designated in 40 CFR part 81 as having moderate or 
above nonattainment problems; or (2) located in the ozone transport 
region (OTR), which was established by section 184 of the CAA. A source 
is defined as major if its VOC and/or NOX emissions exceed 
specified levels, defined in sections 182 and 184 of the CAA, which 
vary depending upon the ozone air quality designation of the area where 
the source is located, and on whether or not the source is located in 
the OTR.
    Pursuant to the CAA's requirements, the Commonwealth of Virginia 
(the Commonwealth) submitted revisions to its SIP consisting of 
regulations pertaining to RACT requirements for major NOX 
and VOC sources located in ozone nonattainment areas and in its portion 
of the OTR. The Commonwealth's regulation pertaining to RACT 
requirements for major NOX sources, for which EPA granted

[[Page 60142]]

conditional limited approval on April 28, 1999 (64 FR 22789), provides 
that sources with steam generating units, process heaters, or gas 
turbines either accept specified RACT limits for these units or request 
case-by-case RACT determinations for them. The regulation also provides 
that sources with other types of emission units must obtain case-by-
case RACT determinations for those units.
    The Commonwealth's regulation pertaining to RACT requirements for 
major VOC sources, which EPA approved on March 12, 1997 (62 FR 11332), 
provides that subject sources obtain case-by-case RACT determinations.
    When EPA granted conditional limited approval of the Commonwealth's 
RACT regulation applying to major NOX sources, EPA 
established the condition that the Commonwealth was required to submit 
its case-by-case RACT determinations for NOX sources to EPA 
for incorporation into the Commonwealth's SIP.

II. Description of the Commonwealth's RACT SIP Submittals

    The Commonwealth established case-by-case RACT requirements for 
sources which had requested RACT determinations pursuant to the 
provisions of the Commonwealth's RACT regulations. This proposed 
rulemaking action pertains to the Commonwealth's request that EPA 
revise the Commonwealth's SIP to include the Commonwealth's case-by-
case RACT SIP submittals for 16 sources. The Commonwealth's submittals 
consist of operating permits and/or consent agreements which contain 
the RACT requirements for each source, as well as supporting 
documentation.
    The 16 sources for which the Commonwealth submitted case-by-case 
RACT determinations, their types and locations, the pollutants they 
emit for which RACT requirements are established, and the dates of the 
Commonwealth's RACT SIP submittals for them are listed in the table 
found in Section III below, entitled, ``Proposed RACT SIP Revision 
Approvals.'' The emission limitations and other RACT requirements for 
each of these sources are discussed in the TSD prepared by EPA in 
support of this proposed action. The TSD is included in the 
administrative record for this rulemaking action, and is available upon 
request from the EPA Region III office listed in the ADDRESSES section 
of this document.

III. Proposed RACT SIP Revision Approvals

    EPA is proposing to approve the Commonwealth of Virginia's RACT SIP 
revisions for the sources listed in the table, below:

                        Virginia--VOC and NOX RACT Determinations for Individual Sources
----------------------------------------------------------------------------------------------------------------
                                                                                                   Major source
            Source                   County          Date of submittal          Source type         pollutant
----------------------------------------------------------------------------------------------------------------
 Cellofoam North America,       Stafford.......  9/22/98.................  Polystyrene           NOX
 Inc.--Falmouth Plant.                                                      Insulation
                                                                            Production Plant.
 CNG Transmission Corp.--       Loudoun........  5/23/00.................  Natural Gas           NOX and VOC
 Leesburg Compressor Station.                                               Compressor Station.
 Columbia Gas Transmission      Loudoun........  5/24/00.................  Natural Gas           ...............
 Corporation--Loudoun County                                                Compressor Station.
 Compressor Station.
 District of Columbia's         Fairfax........  4/20/00.................  Prison..............  NOX and VOC
 Department of Corrections--
 Lorton Prison.
 Michigan Cogeneration          Fairfax........  5/12/00.................  Landfill Gas Fired    NOX and VOC
 Systems, Inc.--Fairfax County                                              Electric Power
 I-95 Landfill Facility.                                                    Generation.
 Metropolitan Washington        Arlington......  5/22/00.................  Airport.............  NOX
 Airports Authority--Ronald
 Reagan Washington National
 Airport.
 Nomen M. Cole, Jr., Pollution  Fairfax........  4/27/00.................  Wastewater Treatment  NOX
 Control Plant.                                                             Plant with Sewage
                                                                            Sludge Incinerators.
 Ogden Martin Systems of        Arlington......  9/14/98.................  Municipal Waste       NOX
 Alexandria/Arlington, Inc.                                                 Combustion Plant.
 Ogden Martin Systems of        Fairfax........  8/31/98.................  Municipal Waste       NOX
 Fairfax, Inc.                                                              Combustion Plant.
 US Department of Defense--     Arlington......  5/19/00.................  Pentagon Office       NOX
 Pentagon Reservation.                                                      Building.
 Potomac Electric Power         Alexandria.....  9/3/98 (NOX)............  Electric Power Plant  NOX and VOC
 Company--Potomac River                          5/9/00 (VOC)............
 Generating Station.
 United States Marine Corps.--  Prince William   5/25/00.................  Marine Corps Base...  NOX
 Quantico Base.                  and Stafford.
 Transcontinental Gas Pipe      Prince William   5/5/97..................  Natural Gas           NOX
 Line Corporation--Compressor    County.                                    Compressor Station.
 Station # 185.
 U.S. Army Garrison--Fort       Fairfax........  5/17/00.................  Fort Belvoir Army     NOX
 Belvoir.                                                                   Base.
 Virginia Power--Possum Point   Prince William   8/31/00 (NOX)...........  Electric Power Plant  NOX and VOC
 Plant.                          County.         4/2/96 (VOC)............
 Washington Gas Light Company-- Fairfax........  5/20/98.................  Natural Gas Fired     NOX
 --Springfield Operations                                                   Cogeneration Plant.
 Center.
----------------------------------------------------------------------------------------------------------------

IV. General Information Pertaining to SIP Submittals From the 
Commonwealth

    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

[[Page 60143]]

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 Section 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 Section 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 Section 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 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.

V. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. This proposed action merely approves state law as meeting 
federal requirements and imposes no additional requirements beyond 
those imposed by state law. Accordingly, the Administrator certifies 
that this proposed rule will not have a significant economic impact on 
a substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.).
    Because this rule proposes to approve pre-existing requirements 
under state law and does not impose any additional enforceable duty 
beyond that required by state law, it does not contain any unfunded 
mandate or significantly or uniquely affect small governments, as 
described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-
4). For the same reason, this proposed rule also does not significantly 
or uniquely affect the communities of tribal governments, as specified 
by Executive Order 13084 (63 FR 27655, May 10, 1998).
    This proposed rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999), because it merely approves a state rule 
implementing a federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This proposed rule also is not subject to Executive Order 
13045 (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply.
    As required by section 3 of Executive Order 12988 (61 FR 4729, 
February 7, 1996), in issuing this proposed rule, EPA has taken the 
necessary steps to eliminate drafting errors and ambiguity, minimize 
potential litigation, and provide a clear legal standard for affected 
conduct.
    EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 
1988) by examining the takings implications of the rule in accordance 
with the ``Attorney General's Supplemental Guidelines for the 
Evaluation of Risk and Avoidance of Unanticipated Takings' issued under 
the executive order.
    This proposed rule pertaining to RACT SIP revisions for 16 sources 
in Virginia does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and 
recordkeeping requirements.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: September 29, 2000.
Bradley M. Campbell,
Regional Administrator, Region III.
[FR Doc. 00-25931 Filed 10-6-00; 8:45 am]
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