[Federal Register Volume 65, Number 203 (Thursday, October 19, 2000)]
[Proposed Rules]
[Pages 62666-62668]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-26906]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[VA122 & 123-5054; FRL-6888-4]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Source-Specific Permits To Reduce NOX Emissions in 
the Metropolitan Washington, D.C. Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve two permits issued by the 
Commonwealth of Virginia for the Potomac Electric Power Company 
(PEPCO), Potomac River Generating Station and the Virginia Power (VP), 
Possum Point Generating Station. These permits were submitted as State 
Implementation Plan (SIP) revisions on September 19, 2000 and September 
26, 2000, respectively, by the Virginia Department of Environmental 
Quality (VADEQ). These permits impose conditions which reduce nitrogen 
oxides (NOX) emissions from these two facilities during the 
ozone season (May 1-September 30) of each year. The intent of this 
action is to propose approval of these permits as SIP revisions because 
the resulting NOX emission reductions are strengthening 
measures for the Metropolitan Washington, D.C. ozone nonattainment 
area's attainment plan and are necessary for full approval of the 
attainment demonstration SIP for the Metropolitan Washington, D.C. 
ozone nonattainment area.

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

ADDRESSES: Comments may be mailed to Makeba A. Morris, Chief, Technical 
Assessment Branch, Mailcode 3AP11, 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 following locations: Air 
Protection Division, Environmental Protection Agency, Region III, 1650 
Arch Street, Philadelphia, Pennsylvania 19103-2029; Virginia Department 
of Environmental Quality, 629 East Main Street, Richmond, Virginia 
23219.

FOR FURTHER INFORMATION CONTACT: Michael Ioff at (215) 814-2166.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What is EPA proposing to approve?
II. What pollutant will these SIP revisions control?
III. What are the limits for these sources?
IV. What are the environmental effects of this action?
V. General information pertaining to Submittals for the Commonwealth
VII. Proposed Action.
VIII. Administrative Requirements.

I . What Is EPA Proposing To Approve?

    EPA is proposing to approve two permits issued by the Commonwealth 
of Virginia for the Potomac Electric Power Company's (PEPCO) Potomac 
River Generating Station in Alexandria and for the Virginia Power (VP), 
Possum Point Generating Station in Dumfries, submitted as SIP revisions 
on September 19, 2000 and September 26, 2000, respectively. These 
permits impose conditions which reduce nitrogen oxides ( 
NOX) emissions during the ozone season of each year (May 1-
September 30). This action will have a beneficial effect on air quality 
by reducing NOX emissions in Metropolitan Washington, D.C. 
ozone nonattainment area. It is being taken under Section 110 of the 
Clean Air Act (CAA).

II. What Pollutant Will These SIP Revisions Control?

    The proposed permits require the Potomac River Station and the 
Possum Point Station to reduce their NOX emissions during 
the ozone season. Nitrogen oxides, or NOX, is the generic 
term for a group of gases formed in a combustion process. The primary 
sources of NOX emissions are motor vehicles, electric 
utilities and, to a lesser degree, industrial, commercial and 
residential sources that burn fossil fuel. NOX is one of the 
main ingredients responsible for formation of ground-level ozone 
(smog).

III. What Are the Limits for These Sources?

    The permit for the Potomac River Generating Station establishes a 
limit (cap) on emission of nitrogen oxides to no more than 1019 tons 
during each ozone season (May 1 through September 30). This emission 
cap is based on an average emission rate of 0.15 pound per million BTU 
of heat input for each individual unit during the ozone season. 
Compliance shall be demonstrated by continuous emission monitoring from

[[Page 62667]]

each unit, beginning no later than year 2003. The permit for the Possum 
Point Generating Station limits emission of nitrogen oxides from the 
combined emission units to no more than 0.15 pound per million BTU of 
heat input averaged over every period of 30 consecutive operating days 
during the ozone season. Compliance shall be demonstrated by 
calculations based upon a specific formula with the input to be derived 
from the collection of continuous emission monitoring data, beginning 
the 30th operating day in January of year 2003.

IV. What Are the Environmental Effects of This Action?

    Both electric utilities are currently operating their emission 
units in compliance with VADEQ issued permits imposing Reasonably 
Available Control Technology (RACT) and ``Acid Rain'' permits issued 
pursuant to Title IV of the CAA. The NOX reduction 
requirements in the permits described in section III, above, are more 
stringent than those imposed in the RACT and Acid Rain permits. 
Therefore, the permits submitted by VADEQ on September 19, 2000 and 
September 26, 2000, will result in additional reductions of 
NOX emissions during the ozone season.

V. General Information Pertaining to 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 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 section 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 
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.
    EPA's review of this material indicates that proposed permits will 
have a beneficial effect on air quality by reducing NOX 
emissions in Metropolitan Washington, D.C. ozone nonattainment area. 
EPA is proposing to approve the permits for Potomac River Generating 
Station and Possum Point Generating Station, as SIP revisions.

VIII. Proposed Action

    EPA is proposing to approve two permits issued by the Commonwealth 
of Virginia to control NOX emissions from the Potomac 
Electric Power Company's (PEPCO) Potomac River Generating Station and 
the Virginia Power's (VP) Possum Point Generating Station as revisions 
to Virginia's SIP. EPA is proposing approval of these permits as SIP 
revisions because the resulting NOX emission reductions are 
strengthening measures for the Metropolitan Washington, D.C. ozone 
nonattainment area's attainment plan SIP and are necessary for full 
approval of that attainment demonstration. Written comments must be 
received on or before November 9, 2000. EPA calls your attention to the 
November 9, 2000 deadline date for submittal of comments on this 
proposed action to approve these SIP revisions submitted by the 
Commonwealth of Virginia. The EPA is providing a shortened time period 
for comment for two reasons. As an initial matter, these revisions are 
non-controversial and EPA does not expect comment because these are 
source-specific SIP revisions consisting of permits affecting only the 
two named facilities. Moreover, these SIP revisions are necessary for 
full approval of the attainment demonstration SIP for the Metropolitan 
Washington, D.C. ozone nonattainment area. The EPA is currently under 
an obligation to complete rulemaking by November 15, 2000 fully 
approving the attainment demonstration for the Metropolitan Washington, 
D.C. ozone nonattainment area or, in the alternative, proposing a 
federal implementation plan.

VIII. 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 proposes to approve state law as 
meeting Federal requirements and imposes no additional requirements 
beyond those imposed by state law. Accordingly, the Administrator 
certifies

[[Page 62668]]

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 proposes to approve 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 to approve permits issued 
by the Commonwealth of Virginia to control NOX emissions 
from the Potomac River Generating Station and the Possum Point 
Generating Station 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, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements.

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

    Dated: October 13, 2000.
Thomas Voltaggio,
Acting Regional Administrator, Region III.
[FR Doc. 00-26906 Filed 10-18-00; 8:45 am]
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