[Federal Register Volume 65, Number 241 (Thursday, December 14, 2000)]
[Rules and Regulations]
[Pages 78100-78102]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-31727]



[[Page 78100]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[VA122 & 124-5055; FLR-6919]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving two State Implementation Plan (SIP) revisions 
submitted by the Commonwealth of Virginia. the intended effect of this 
action is to approve 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, September 26, 2000, and October 24, 
2000, 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 resulting NOX 
emission reductions are strengthening measures for the Metropolitan 
Washington, DC ozone nonattainment area's attainment plan and are 
necessary for full approval of the attainment demonstration SIP for 
this ozone nonattainment area.

EFFECTIVE DATE: This final rule is effective on January 16, 2001.

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; and the Virginia 
Department of Environmental Quality, 629 East Main Street, Richmond, 
Virginia, 23219.

FOR FURTHER INFORMATION CONTACT: Michael Ioff at (215) 814-2166 or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On October 19, 2000 (65 FR 62666), EPA published a notice of 
proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR 
proposed to approve, as revisions to the Virginia SIP, two permits 
issued by the Commonwealth. One permit was issued for PEPCO's Potomac 
River Generating Station and the other for VP's Possum Point Generating 
Station. That NPR provided for a public comment period ending on 
November 9, 2000. On November 9, 2000 (65 FR 67319), EPA published a 
notice extending the comment period to November 20, 2000. The 
requirements of the permits and EPA's rationale for approving them as 
SIP revisions were provided in the NPR and will not be restated here. 
EPA received no comments on its proposed action to approve these 
permits.
    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 regualt5eed 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. 101.1-1198, 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 ``enorce 
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 
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.

II. Final Action

    EPA is approving permits issued by the commonwealth of Virginia to 
PEPCO's Potomac river Generating Station and to VP's Possum point 
Generating Station as revisions to the Virginia SIP. EPA is amending 
the chart found at 40 CFR section 52.2420(d) to reflect its approval 
action.

III. Administrative Requirements

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the

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Office of Management and Budget. This 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 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 approves 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 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 
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 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 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 rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).

B. 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. Section 804 exempts from section 801 the following types 
of rules: (1) rules of particular applicability; (2) rules relating to 
agency management or personnel; and (3) 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.

C. Petitions for Judicial 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 February 12, 2001. 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 two permits issued by the 
Commonwealth of Virginia to PEPCO's Potomac River Generating Station 
and to VP's Possum Point Generating Station 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, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements.

    Dated: December 1, 2000.
Bradley M. Campbell,
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

    1. In Sec. 52.2420, the table in paragraph (d) is amended by adding 
the entires for ``Potomac Electric Power Company (PEPCO)--Potomac River 
Generating Station (Permit to Operate)'' and ``Virginia Power (VP)--
Possum Point Generating Station (Permit to Operate)'' at the end of the 
table to read as follows:


Sec. 52.2420  Identification of plan.

* * * * *
    (d) * * *

                                                   EPA-Approved Virginia Source-Specific Requirements
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                                     Permit/order or registration
            Source name                          number                State effective date          EPA approval date         40 CFR part 52 citation
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                   *                  *                  *                  *                  *                  *                  *
Potomac Electric Power Company       Registration No. 70228......  9/18/00....................  12/14/00...................  52.2420(d).
 (PEPCO)--Potomac River Generating
 Station (Permit to Operate).
Virginia Power (VP)--Possum Point    Registration No. 70225......  9/26/00....................  12/14/00...................  52.2420(d).
 Generating Station (Permit to
 Operate).
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[FR Doc. 00-31727 Filed 12-13-00; 8:45 am]
BILLING CODE 6560-50-M