[Federal Register Volume 66, Number 1 (Tuesday, January 2, 2001)]
[Rules and Regulations]
[Pages 8-16]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-33165]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[VA 5056; FRL-6922-6]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving State Implementation Plan (SIP) revisions 
submitted by the Commonwealth of Virginia. The revisions impose 
reasonably available control technology (RACT) on 16 major sources of 
volatile organic compounds (VOCs) and/or nitrogen oxides 
(NOX) located in the Virginia portion of the Metropolitan 
Washington, D.C. ozone nonattainment area. The intent of this action is 
to approve the Commonwealth's SIP revision requests in accordance with 
the Clean Air Act.

EFFECTIVE DATE: This final rule is effective on February 1, 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.

FOR FURTHER INFORMATION CONTACT: Ray Chalmers, at (215) 814-2061, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Pursuant to sections 182 and 184 of the Clean Air Act (CAA), States 
are required to implement RACT for major sources of VOCs and/or 
NOX which are: (1) Located in those areas which have not 
attained the National Ambient Air Quality Standard for ozone (ozone 
nonattainment areas) which are classified 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

[[Page 9]]

levels, defined in sections 182 and 184 of the CAA, which vary 
depending upon the ozone air quality designation and classification of 
the area where the source is located, and 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 
including its portion of the OTR.
    The Commonwealth's regulation pertaining to RACT requirements for 
so called non-CTG major VOC sources (a non-CTG source is defined as one 
not otherwise required to comply with RACT under a SIP-approved 
regulation developed pursuant to an EPA-issued Control Technique 
Guideline (CTG) for a specific source category) was approved by EPA on 
March 12, 1997 (62 FR 11332). This regulation provides for the subject 
non-CTG major sources of VOC sources to obtain case-by-case RACT 
determinations. The Commonwealth's regulation pertaining to RACT 
requirements for major NOX sources, for which EPA granted 
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. When EPA granted conditional 
limited approval of the Commonwealth's NOX RACT regulation, 
EPA established the condition that the Commonwealth was required to 
submit its case-by-case RACT determinations for NOX sources 
to EPA for approval as source-specific SIP revisions.
    This final rulemaking action pertains to the Commonwealth's case-
by-case RACT SIP submittals for 16 sources. The Commonwealth's SIP 
submittals consist of operating permits and/or consent agreements which 
contain the RACT requirements for each source, as well as supporting 
documentation. In some cases these submittals contain both RACT and 
non-RACT related requirements. EPA is acting on only those portions of 
the submittals which pertain to RACT requirements. The 16 sources, 
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 below, entitled, 
``VIRGINIA--VOC AND NOX RACT DETERMINATIONS FOR INDIVIDUAL 
SOURCES.''
    On October 10, 2000 (65 FR 60141), EPA published a notice of 
proposed rulemaking (NPR) proposing to approve the Commonwealth's RACT 
SIP submittals for these 16 sources. At the time of this proposal, EPA 
provided a description of the Commonwealth's RACT determinations and 
our rationale for proposing to approve them. EPA received comments on 
the October 19, 2000 proposed approval from the EarthJustice Legal 
Defense Fund, an environmental group. EPA summarizes the comments and 
provides its responses to them in Section II of this document.

                                            Virginia--VOC and NOX Ract Determinations for Individual Sources
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                                                                                                                                     ``Major source''
               Source                                  County                       Date of submittal           Source type              pollutant
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Cellofoam North America, Inc.--      Stafford.................................  9/22/98                    Polystyrene            VOC
 Falmouth Plant.                                                                                            Insulation
                                                                                                            Production Plant.
CNG Transmission Corp.--Leesburg     Loudoun..................................  5/23/00                    Natural Gas            NOX and VOC
 Compressor Station.                                                                                        Compressor Station.
Columbia Gas Transmission            Loudoun..................................  5/24/00                    Natural Gas
 Corporation--Loudoun County                                                                                Compressor Station.
 Compressor Station.
District of Columbia's Department    Fairfax..................................  4/20/00                    Prison...............  NOX and VOC
 of Corrections--Lorton Prison.
Michigan Cogeneration Systems,       Fairfax..................................  5/12/00                    Landfill Gas Fired     NOX and VOC
 Inc.--Fairfax County I-95 Landfill                                                                         Electric Power
 Facility.                                                                                                  Generation.
Metropolitan Washington Airports     Arlington................................  5/22/00                    Airport..............  NOX
 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 Alexandria/  Arlington................................  9/14/98                    Municipal Waste        NOX
 Arlington, Inc.                                                                                            Combustion Plant.
Ogden Martin Systems of Fairfax,     Fairfax..................................  8/31/98                    Municipal Waste        NOX
 Inc.                                                                                                       Combustion Plant.
U.S. Department of Defense--         Arlington................................  5/19/00                    Pentagon Office        NOX
 Pentagon Reservation.                                                                                      Building.
Potomac Electric Power Company--     Alexandria...............................  9/3/98 (NOX)               Electric Power Plant.  NOX and VOC
 Potomac River Generating Station.                                              5/9/00 (VOC)
United States Marine Corps.--        Prince William and Stafford..............  5/25/00                    Marine Corps. Base...  NOX
 Quantico Base.
Transcontinental Gas Pipe Line       Prince William County....................  5/5/97                     Natural Gas            NOX
 Corporation--Compressor Station                                                                            Compressor Station.
 #185.
U.S. Army Garrison--Fort Belvoir...  Fairfax..................................  5/17/00                    Fort Belvoir Army      NOX
                                                                                                            Base.
Virginia Power--Possum Point Plant.  Prince William County....................  8/31/00 (NOX)              Electric Power Plant.  NOX and VOC
                                                                                4/2/96 (VOC)
Washington Gas Light Company--       Fairfax..................................  5/20/98                    Natural Gas Fired      NOX
 Springfield Operations Center.                                                                             Cogeneration Plant.
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[[Page 10]]

II. Public Comments and EPA's Responses

A. General Comments Pertaining to All of the RACT SIP Submittals

    Comment: The commenter notes that RACT is defined as ``the lowest 
emission limitation that a particular source is capable of meeting by 
the application of control technology that is reasonably available 
considering technological and economic feasibility,'' and asserts that 
the Commonwealth failed to demonstrate that the proposed emissions 
limits meet this test. The commenter also asserts that the EPA had 
failed to adequately evaluate the Commonwealth's submittals.
    EPA's Response: EPA disagrees with these comments. Under the 
Commonwealth's EPA approved RACT regulations a sources which is 
required to obtain a case-by-case RACT determination, or which chooses 
to exercise the option of requesting such a determination, are required 
to submit RACT proposals to the Commonwealth, and the Commonwealth is 
then obligated to either approve or disapprove the submittal. Of the 
sources to which this rulemaking pertains, Cellofoam North America, 
Nomen M. Cole Pollution Control Plant, Ogden Martin Systems, Inc. 
(Alexandria Plant), Ogden Martin Systems, Inc. (Fairfax Plant), Potomac 
Electric Power Company's Potomac River Station, Transcontinental Gas, 
Virginia Power's Possum Point Plant, and Washington Gas Light Company 
submitted proposed RACT determinations to the Commonwealth, and 
supported their determinations by providing RACT analyses of the 
technological and economic feasibility of controls. The Commonwealth 
affirmed in its SIP revision submittals for these companies that it had 
reviewed the companies' proposed RACT determinations and their 
supporting analyses and had determined them to be acceptable as RACT. 
By reviewing these companies' RACT proposals/analyses and determining 
them to be acceptable as RACT, the Commonwealth met its obligations 
under its SIP-approved RACT regulations. The sources' RACT proposals 
and analyses are in the Commonwealth's public record for these SIP 
revisions and in EPA rulemaking docket approving them. The Commonwealth 
imposed RACT for all of these sources, except for Potomac Electric 
Power Company's Potomac River Station (for VOC), and Virginia Power's 
Possum Point Plant (for NOX), in Consent Agreements. In 
these Consent Agreements the Commonwealth documented that it had met 
with and/or corresponded with all of these sources regarding their RACT 
proposals prior to approving them as RACT determinations. In the cases 
of the Potomac Electric Power Company's Potomac River Station (for 
VOC), and of Virginia Power's Possum Point Plant (for NOX), 
the Commonwealth established RACT requirements through permits, and in 
these cases the Commonwealth provided a ``Statement of Basis'' and/or a 
``RACT Review Memorandum'' in which it set forth the basis for its RACT 
determinations.
    With regard to the other sources to which this rulemaking pertains, 
the Commonwealth initially interpreted the CAA's provisions for RACT as 
there being no need to impose RACT for sources or emissions units which 
it had recently permitted, because it had required that those sources 
to meet Best Available Control Technology (BACT) requirements. The EPA 
informed the Commonwealth that a RACT does apply for these sources. The 
Commonwealth did, therefore, issue case-by-case RACT determinations for 
these sources and emission units. Also, the Commonwealth's regulation 
requiring RACT for NOX sources, as it was originally 
promulgated, did not require a NOX RACT demonstration for 
any steam generating unit, process heater or gas turbine with a rated 
capacity of less than 100 MMBTU/ hour, or for any combustion unit with 
a rated capacity of less than 50 MMBTU/hour. When the EPA approved 
Virginia's regulation requiring RACT for NOX emitting 
sources, these provisions were not among those which EPA approved. 
Accordingly, the Commonwealth issued RACT determinations for these 
sources. For many of these sources, the Commonwealth provided its own 
RACT analyses for its RACT determination. In certain cases, the 
Commonwealth's submittal provided both its own rationale for its RACT 
determination and the RACT proposal and analysis submitted by the 
source. In all of these cases where the Commonwealth not only made the 
RACT determination but performed and provided some or all of the RACT 
analyses supporting the determination, the Commonwealth set forth the 
basis for its RACT determination in a ``Statement of Basis'' and/or a 
``RACT Review Memorandum.'' Of the sources to which this rulemaking 
action pertains, the Commonwealth made RACT determinations and provided 
a RACT analysis supporting its RACT determinations for CNG Transmission 
Corporation, Columbia Gas Transmission Company, the District of 
Columbia's Lorton Prison, Michigan Cogeneration Systems, Inc., the 
Metropolitan Washington Airport Authority's National Airport, the U.S. 
Department of Defense's Pentagon Building, the Potomac Electric Power 
Company's Potomac River Station (for VOC), the Quantico Marine Corps. 
Base, the U.S. Army Garrision at Fort Belvoir, and Virginia Power's 
Possum Point Plant (for NOX).
    With regard to the comment that EPA has an independent obligation 
to determine whether the control strategies for each source meet the 
Clean Air Act's requirements. EPA believes it has fulfilled this 
obligation. EPA disagrees that it is required to perform a new and 
independent RACT analysis for the sources to which this rulemaking 
pertains. EPA did, however, review the Commonwealth's RACT SIP 
submittals to determine if the RACT determinations appeared to be 
reasonable and well supported. EPA's commitment to assuring the 
adequacy of the Commonwealth's submittals is evidenced by the fact that 
when the Commonwealth held public hearings and requested comments on 
its proposed case-by-case RACT SIPs for the sources to which this 
rulemaking action applies, EPA submitted written comments to the public 
records. The Commonwealth summarized EPA's comments and provided its 
responses. The summary of public comments the Commonwealth received and 
its responses were included in formal SIP revisions submittals for 
these requested RACT SIP revisions, and as such are included in EPA's 
rulemaking docket for this rulemaking action.
    Comment: The commenter states that the CAA ``required compliance by 
all of the sources for which the Commonwealth had submitted case-by-
case RACTs by May 31, 1995, and is concerned that EPA might be 
approving an extension of this compliance date.
    EPA's Response: The Commonwealth's EPA-approved RACT regulations, 
found at 9 VAC 5-40-300 and 310, require all sources for which the CAA 
requires RACT to be in compliance by the May 31, 1995 deadline 
specified in the CAA.\1\ Virginia has not extended the Act's compliance

[[Page 11]]

date for those major sources mandated to comply by May 31, 1995, and by 
approving the Commonwealth's case-by-case SIP revisions, EPA is not 
approving an extension of this deadline. To the extent that Virginia's 
consent agreements and permits require additional reductions beyond the 
mandated compliance deadline for meeting RACT, these requirements are 
not considered to be part of the RACT determinations.
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    \1\ Consistent with the Act, the Commonwealth's RACT regulations 
require facilities in the Northern Virginia Emissions Control Area 
which have a theoretical potential to emit of 50 tons per year (TPY) 
or greater of NOX or VOCs to comply by May 31, 1995. To 
obtain additional emission reductions beyond those mandated by the 
Act, the Commonwealth also required VOC sources with a theoretical 
potential to emit 25 TPY or greater, but less than 50 TPY, to apply 
RACT. The Commonwealth set a compliance deadline for these sources 
of May 31, 1996.
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    Comment: The commenter notes that public hearings are required for 
all SIP revisions, and asks whether or not proper hearings were held 
with respect to the Commonwealth's RACT SIP submittals.
    EPA's Response: The Commonwealth has met all of the CAA's 
requirements for amending its SIP. Included in each of Virginia's RACT 
SIP submittals is its formal certification that it provided public 
notice and held public hearings. The Commonwealth also provided a copy 
of the public hearing notice, a summary of any comments it received, 
and its response to those comments in each of the SIP submittals for 
these sources.
    Comment: The commenter states that ``[t]he Act and EPA's guidance 
requires the SIP to include legally enforceable procedures to require 
continuous monitoring and recording of emissions,'' and concluded that 
``EPA cannot approve the proposed SIP revision unless it includes 
monitoring requirements for each emission unit that fully comply with 
EPA rules and guidance, and that assure continuous compliance with all 
emission limits.''
    EPA's Response: The Commonwealth's approved SIP does include the 
legally enforceable procedures to require continuous monitoring and 
recording of emissions which are required by 40 CFR 51.214. These 
requirements are found in Virginia's SIP-Approved Regulations for the 
Control and Abatement of Air Pollution at 9 VAC 5-40-40 and 5-40-41. 
All sources in the Commonwealth which are subject to RACT, including 
those which are issued consent decrees and or permits imposing case-by-
case RACT under the Commonwealth's approved RACT regulations are 
subject to 9 VAC 5-40-40 and 5-40-41.
    Comment: The commenter notes that ``Virginia is proposing to exempt 
specific emission units on the ground that they are exempt under the 
State's RACT rules,'' and concludes that this is not acceptable.
    EPA's Response: Virginia's EPA-approved regulations requiring 
NOX RACT do contain provisions exempting several types of 
sources considered to be low NOX emitters from the 
requirement to obtain a NOX RACT determination. These 
exemptions were discussed in detail in EPA's rulemaking approving the 
Commonwealth's NOX RACT regulation (see EPA's January 26, 
1999 proposed rule 64 FR 3893). That rulemaking also included EPA's 
rationale for approving those exemptions. EPA received no comments on 
its proposed rule approving the Commonwealth's NOX RACT 
regulation. EPA published its final rule on April 28, 1999 and that 
approval was effective on May 28, 1999.
    It is, therefore, neither timely nor appropriate to comment on the 
provisions of the Commonwealth's NOX RACT regulations 
itself, including the exemption provisions, at the time EPA conducts 
rulemaking approve the case-by-case RACT determinations issued by the 
Commonwealth pursuant to that rule. It should be noted that emissions 
units for which a RACT determination is not required remain subject to 
the general requirements of the Commonwealth's regulations. One of 
those requirements, found at 9 VAC 5-20-180, is that ``at all times, 
including periods of startup, shutdown and malfunction, owners shall, 
to the extent practicable, maintain and operate any affected facility, 
including associated air pollution control equipment or monitoring 
equipment, in a manner consistent with good air pollution control 
practice of minimizing emissions.''
    Comment: As part of any SIP revisions incorporating the above 
rules, the state must provide commitments of adequate funding and 
personnel to implement and enforce the rules. 42 U.S.C. 7410(a)(2)(E); 
40 CFR 51.280. The state must also detail a program for enforcement of 
the rules. 42 U.S.C. 7410(a)(2)(C). None of these requirements were 
addressed in [the] Federal Register notice or TSD.
    EPA's Response: EPA disagrees with the commenter's assertion that 
states must provide such information with each SIP revision. Although 
42 U.S.C. 7410(a)(2)(E) and 7410(a)(2)(C) do contain these provisions 
cited by the commenter, section 7410(a)(2)(H) is the statutory 
provision which governs requirements for individual plan revisions 
which States may be required to submit from time to time. There are no 
cross-references in section 7410(a)(2)(H) to either 7410(a)(2)(E) or 
7410(a)(2)(C). Therefore, EPA concludes that Congress did not intend to 
require States to submit an analysis of adequate funding and 
enforcement with each subsequent and individual SIP revision submitted 
under the authority of section 7410(a)(2)(H). Similarly, 40 CFR part 
51, Appendix V contains the list of information which States must 
submit with each plan revision in order for EPA to conduct a review of 
completeness under section 7410(k)(1). The list in part 51, Appendix V 
contains no cross-reference to or cite of the provisions of 40 CFR 
51.280 as a criterion for determining completeness. Thus, in following 
Congress' intent, EPA has further determined that the requirements of 
40 CFR 51.280 do not apply to each individually-submitted State plan 
revision. Nevertheless, EPA notes that Virginia had previously 
submitted such commitments as part of the 1982 SIP for the Northern 
Virginia portion of the Metropolitan Washington, DC Ozone Nonattainment 
area. In a final rulemaking action published on February 25, 1984 (49 
FR 3063), EPA approved Virginia's financial and manpower resource 
commitments, after having proposed approval of these commitments on 
February 3, 1983 (48 FR 5124 at 5127). EPA is satisfied that the 
Commonwealth continues to have adequate funding and personnel to 
implement and enforce the current RACT rules. However, EPA does have 
the authority under the CAA to make findings regarding implementation 
failures or other SIP deficiencies and take appropriate action in such 
situations. Should EPA find that Virginia lacks adequate resources to 
pursue any violation of the ozone SIP, or if Virginia's enforcement 
response is inadequate, EPA will take appropriate action under its CAA 
authority.

B. Comments Pertaining to RACT Submittals for Specific Sources

    Comment: The commenter questions the RACT determination for 
Columbia Gas Transmission Corporation's Loudoun County Compressor 
Station. The commenter notes that the Commonwealth's proposed limits 
for the gas turbines range from 76 to 142 ppmvd, and states that these 
are substantially higher than RACT limits set elsewhere. The commenter 
says that the Commonwealth has not shown that the lower limits achieved 
elsewhere are not reasonably achievable at this source.
    EPA's Response: EPA disagrees with this comment. The Commonwealth 
addresses the issue in its ``RACT Review Memorandum'' contained in its 
SIP submittal. The Commonwealth states reports that on August 21, 1990, 
it had issued a State Air Pollution Control Board permit to install, 
modify, and operate to Columbia Gas Transmission Corp. to allow the 
modification of eight existing natural gas fired turbines, each rated 
at 14.46  x  106 BTU/hr, and one

[[Page 12]]

natural gas-fired turbine, rated at 39.72  x  106 BTU/hr. 
The Commonwealth states that it had determined when it issued this 
permit that the required controls and emission limits for the turbines 
were BACT. The Commonwealth states that it had concluded when it issued 
the permit that ``the low-NOX combustion technology utilized 
in the turbines selected represents the state of the art in dry 
controls and that selective catalytic reduction, and steam or water 
injection would not be reasonable for a gas pipeline installation.'' 
The Commonwealth states that the control technology evaluation document 
supporting issuance of the 1990 permit had indicated that more advanced 
dry low NOX controls would not be commercially available for 
four or five years. The Commonwealth determines that it was therefore 
``reasonable to assume that had a RACT analysis been required and 
conducted for the facility at the time others were in 1993, the 
conclusion would have been the same as for the BACT analysis.'' The 
Commonwealth further states that while its BACT determination appears 
to have been valid, it was lacking a quantitative analysis of cost-
effectiveness of alternative controls. The Commonwealth therefore cites 
its examination of EPA's Alternative Control Technology--NOX 
Emissions from Stationary Gas Turbines document (EPA--453/R-93-007) 
which shows that two technologies might be cost effective for the 
larger Centaur T-4500 turbine. Steam and water injection is marginally 
cost effective, but the BACT analysis eliminated that option as 
infeasible for a rural gas-pipeline pumping station. The other 
possibility is a lean pre-mix combustor. The Commonwealth states that 
the Company provided information showing that the cost of retrofitting 
the larger turbine would have cost approximately $4,000 per ton of 
NOX reduced, more than the Commonwealth considered 
reasonable. The cost of retrofitting the smaller turbines would have 
been even higher on a cost per ton of NOX removed basis. EPA 
finds that the Commonwealth has adequately justified its RACT 
determination for s for this source.
    Comment: The commenter believes that RACT requirements should 
always be expressed in terms of emission limits. The commenter 
therefore objects to the determinations that RACT for various types of 
combustion units located at the Metropolitan Washington Airports 
Authority's Ronald Reagan National Airport, the Nomen M. Cole, Jr., 
Pollution Control Plant, the U.S. Marine Corps' Quantico Base, the 
Transcontinental Gas Pipeline Corporation's Compressor Station #185, 
and the U.S. Army Garrison at Fort Belvoir consists of good management 
practices and operating procedures. The commenter also requests further 
details regarding the ``low emission combustion technology'' which had 
been specified as RACT for Transcontinental Gas Company's Station 185, 
what emissions limits were associated with it, and when it would be 
implemented.
    EPA's Response: The Commonwealth determined that RACT for two 
incinerators at the Nomen M. Cole, Jr., Pollution Control Plant 
consists of operating the incinerators within specified temperature and 
percent oxygen ranges, and in accordance with good management practices 
and operating procedures. The Commonwealth established these RACT 
requirements because the Nomen M. Cole, Jr., Pollution Control Plant 
demonstrated that there are no technically and economically feasible 
controls for the incinerators. At Transcontinental Gas Company's 
Station 185 the Commonwealth determined that RACT for ten 2050 
horsepower Ingersol Rand 412-KVS engines consisted of use of low 
emission combustion (LEC) technology. LEC technology consists of 
extensive modifications to an internal combustion engine which enable 
the engine to operate at a higher air to fuel ratio, which results in 
lower combustion temperatures and lower NOX formation. A 
detailed discussion of LEC technology is provided in the EPA 
publication entitled, ``Alternative Control Techniques Document--
NOX Emissions from Stationary Reciprocating Internal 
Combustion Engines.'' The Commonwealth did not establish emission 
limits associated with implementation of this technology. However, EPA 
considers this acceptable given that LEC involves the physical 
modification of the engine itself, which will result in a permanent 
reduction in the each engine's physical potential to emit 
NOX.
    The Commonwealth determined that RACT for certain combustion units 
at the Metropolitan Washington Airports Authority's Ronald Reagan 
National Airport, the Marine Corps' Quantico Base, the Transcontinental 
Gas Pipeline Corporation Compressor Station 185, and the U.S. Army's 
Garrison at Fort Belvoir consisted of good management practices and 
operating procedures because of the small size of these units. EPA has 
approved RACT SIP regulations for other States in which NOX 
RACT for small combustion units is defined as proper operation and 
maintenance or an annual evaluation and adjustment of the combustion 
process. For example, EPA has approved provisions in Pennsylvania's 
RACT SIP regulations which define RACT for combustion units with a 
rated heat input equal to or greater than 20 MMBTU/hour and less than 
50 MMBTU/hour as an annual adjustment or tune-up on the combustion 
process, and which define RACT for combustion units with a rated heat 
input of less than 20 MMBTU/hour as proper operation and maintenance. 
EPA approved these provisions in Pennsylvania's RACT SIP regulations 
because Pennsylvania had provided information stating that there are no 
technically or economically feasible controls. As in the case of 
Pennsylvania, the Commonwealth's has determined that RACT consists an 
annual evaluation and adjustment of the combustion process and of 
proper operation and maintenance for combustion units with rated inputs 
of less than 50 MMBTU/hour.
    Comment: The commenter states that EPA cannot lawfully approve the 
Commonwealth's RACT proposal pertaining to PEPCO's Alexandria 
Generating Station, because the proposal involves an emissions 
averaging plan in which emissions from the Alexandria Generating 
Station would be offset by reductions at two other PEPCO plants in 
Maryland. The commenter said that the Act requires RACT at each source 
within the nonattainment area, and does not allow companies to pick and 
choose which facilities will comply with RACT. The commenter also said 
that the proposal was not acceptable because Virginia would have no 
authority to enforce the emission limits established for the PEPCO 
sources located in Maryland. The commenter also objects to the 
averaging proposal on the basis that it assumes that the ``offsetting 
reductions'' at the Maryland power plants are ``surplus'' or ``excess'' 
reductions that are not otherwise needed. The commenter notes that the 
Washington area is delinquent in meeting the serious area attainment 
deadline, and still lacks an approved attainment SIP. The commenter 
states that ``If any additional emission reductions are achievable at 
the Maryland plants, they are needed to bring the area closer to 
attainment--they cannot be used to offset reductions that are otherwise 
mandated by the Act.''
    EPA's Response: EPA disagrees with this comment. Under the Emission 
Trading Policy (see December 4, 1986, 51 FR 43814) stationary sources 
of criteria air pollutants located within the same nonattainment area 
may comply

[[Page 13]]

with their requirements, including RACT, in the most cost effective 
manner via emissions trading. Under that policy, surplus emissions are 
those not otherwise required to meet an applicable emission limitation 
under the CAA. At the time RACT was required to be determined and 
complied with under the CAA, the Commonwealth and the State of Maryland 
made RACT determinations for these PEPCO facilities and negotiated a 
memorandum of understanding (MOU) to implement those determinations by 
means of a RACT averaging plan. The signed MOU provides for both the 
Commonwealth and Maryland to enforce the averaging plan. That MOU was 
formally submitted to EPA as part of the SIP revision. At such time as 
the need for additional reductions (beyond those that have been 
achieved by implementing the CAA's applicable Part D requirements) are 
determined to be necessary to demonstrate rate-of-progress and/or 
attainment in an ozone nonattainment area, a state has the flexibility 
to decide what additional control measures it shall implement to 
achieve those reductions. The comment implies that a state must revisit 
RACT to secure those reductions. EPA does not agree. More to the point, 
on December 15, 2000, EPA signed a final rule approving the one-hour 
ozone attainment demonstration SIP for the Metropolitan Washington, 
D.C. ozone nonattainment area and approved a compliance date extension 
to 2005.
    Comment: The commenter objects to the Commonwealth's decision to 
establish RACT emissions limits for Boilers 3, 4, and 5 at Virginia 
Power's Possum Point Station which are consistent (in terms of 
allowable lbs of NOX per million BTU heat input) with the 
limits in the Commonwealth's EPA approved RACT regulations. The 
commenter notes that the requirements in the Commonwealth's EPA 
approved RACT regulations which are applicable to Boilers 3, 4, and 5, 
which are specified in Table 4-4C of 9 VAC 5-40-311, are less stringent 
than currently-recognized RACT. The commenter also objects to the fact 
that the Commonwealth allowed compliance with the limits to be 
demonstrated through the use of 30 day averaging. The commenter notes 
that the EPA-approved RACT regulations require the use of daily 
averaging.
    EPA's Response: With regard to the comments on the requirements of 
the SIP-approved NOX regulation itself, its provisions were 
discussed in detail in EPA's rulemaking approving the Commonwealth's 
NOX RACT regulation (see EPA's January 26, 1999 proposed 
rule 64 FR 3893). That rulemaking also included EPA's rationale for 
approving the regulation. EPA received no comments on its proposed rule 
approving the Commonwealth's NOX RACT regulation. EPA 
published its final rule on April 28, 1999 and that approval was 
effective on May 28, 1999. It is, therefore, neither timely nor 
appropriate to comment on the provisions of the Commonwealth's 
NOX RACT regulations itself.
    The Commonwealth's regulations requiring sources of NOX 
to obtain case-by-case RACT determinations required sources to be in 
compliance by May 31, 1995, and the Commonwealth's regulations are 
intended to reflect RACT as of that time. Accordingly, the 
Commonwealth's RACT SIP submittals also require RACT as of May 31, 
1995. With respect to the averaging time used to demonstrate 
compliance, the Commonwealth requires that compliance by Boilers 3 and 
4 be demonstrated through the use of daily averaging. For Boiler 5, the 
Commonwealth allows 30 day averaging. In its ``Statement of Basis'' for 
this SIP revision, the Commonwealth explains its reasons for allowing 
30 day averaging for Boiler 5. The Commonwealth's Department of 
Environmental Quality (DEQ) submittal states that Unit #5 has 
historically been used only sparingly, during times of peak power 
demand. The DEQ further states that the continuous emissions monitors 
(CEMs) on the flue have shown that during the few times it has operated 
at full load, the unit has not demonstrated a continuous ability to 
meet the 0.25 lb-NOX/106 BTU limit in 9 VAC 5-40-
311. The Commonwealth's RACT analysis states that due to the 
infrequency of full load operation, if emissions and heat input were 
averaged over a 30 day period, the unit likely would meet the 0.25 
limit. DEQ states that a daily review of an emission rate averaged over 
the previous 30 days, i.e., a 30 day rolling average may be acceptable 
for a compliance demonstration with 9 VAC 5-40-311. It also states, 
however, in other instances its regulation has been interpreted to 
require a calendar day averaging period for a compliance demonstration, 
so a case-by-case specific analysis was required to justify that either 
a less stringent limit or a longer averaging period is in order. That 
analysis includes an examination of cost of getting fuel oil with a 
guaranteed lower fuel-bound nitrogen content than is currently burned. 
The analysis uses some conservative assumptions to show that the cost-
to-benefit ratio is prohibitively excessive. Likewise, the 
Commonwealth's analysis determines that other control options, such as 
selective catalytic reduction (SCR), are too expensive for a reduction 
from 0.27 to 0.25 lb-NOX/106 BTU, which is all 
that is required during the worst-case scenario, full load operation. 
EPA has reviewed this analysis and has determined that it complies with 
the requirements of the CAA.

III. Final Action

    EPA is approving the Commonwealth of Virginia's case-by-case RACT 
SIP revision submittals for the 16 sources listed in the table found in 
Section I, above, entitled, ``VIRGINIA--VOC AND NOX RACT 
DETERMINATIONS FOR INDIVIDUAL SOURCES'' as revisions to the 
Commonwealth's SIP.

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 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

[[Page 14]]

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 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.

V. 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 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 March 5, 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 approving the Commonwealth's case-by-case 
RACT SIP revisions for 16 sources 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, 
Intergovernmental relations, Nitrogen dioxide, Ozone.

    Dated: December 15, 2000.
Thomas C. 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:


[[Page 15]]


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

Subpart VV--Virginia

    2. In Section 52.2420, the table in paragraph (d) is amended by 
adding the entries for ``Cellofoam North America, Inc.--Falmouth Plant 
[Consent Agreement]'', ``CNG Transmission Corporation--Leesburg 
Compressor Station [Permit]'', ``Columbia Gas Transmission Company--
Loudoun County Compressor Station [Permit]'', ``District of Columbia's 
Department of Corrections--Lorton Prison [Permit]'', ``Michigan 
Cogeneration Systems, Inc.--Fairfax County I-95 Landfill [Permit]'', 
``Metropolitan Washington Airports Authority--Ronald Reagan Washington 
National Airport [Permit]'', ``Nomen M. Cole, Jr., Pollution Control 
Plant [Consent Agreement]'', ``Ogden Martin Systems of Alexandria/
Arlington, Inc. [Consent Agreement]'', ``Ogden Martin Systems of 
Fairfax, Inc. [Consent Agreement]'', ``U.S. Department of Defense--
Pentagon Reservation [Permit]'', ``Potomac Electric Power Company 
(PEPCO)--Potomac River Generating Station [Consent Agreement containing 
NOX RACT requirements.]'', ``Potomac Electric Power Company 
(PEPCO)--Potomac River Generating Station [Permit containing VOC RACT 
requirements]'', ``United States Marine Corps.--Quantico Base 
[Permit]'', ``Transcontinental Gas Pipeline Corporation--Compressor 
Station #185 [Consent Agreement]'', ``U.S. Army Garrison at Fort 
Belvoir [Permit]'', ``Virginia Power (VP)--Possum Point Generating 
Station [Consent Agreement containing VOC RACT requirements]'', 
``Virginia Power (VP)--Possum Point Generating Station [Permit 
containing NOX RACT requirements]'', and ``Washington Gas 
Light Company--Springfield Operations Center [Consent Agreement]'' at 
the end of the table to read as follows:


Sec. 52.2420  Identification of plan.

* * * * *
    (d) * * *

                                                   EPA-Approved Virginia Source-Specific Requirements
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                State
          Source name               Permit/order or registration number    effective date  EPA approval date            40 CFR part 52 citation
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
Cellofoam North America, Inc.--  Registration #40696.....................       8/10/1998  January 2, 2001..  52.2420(d).
 Falmouth Plant [Consent                                                                   [page citation]..
 Agreement].
CNG Transmission Corporation--   Registration #71978.....................       5/22/2000  January 2, 2001..  52.2420(d).
 Leesburg Compressor Station                                                               [page citation]..
 [Permit].
Columbia Gas Transmission        Registration #72265.....................       5/23/2000  January 2, 2001..  52.2420(d).
 Company--Loudoun County                                                                   [page citation]..
 Compressor Station [Permit].
District of Columbia's           Registration #70028.....................      12/10/1999  January 2, 2001..  52.2420(d).
 Department of Corrections--                                                               [page citation]..
 Lorton Prison [Permit].
Michigan Cogeneration Systems,   Registration #71961.....................       5/10/2000  January 2, 2001..  52.2420(d).
 Inc.--Fairfax County I-95                                                                 [page citation]..
 Landfill [Permit].
Metropolitan Washington          Registration #70005.....................       5/22/2000  January 2, 2001..  52.2420(d).
 Airports Authority--Ronald                                                                [page citation]..
 Reagan Washington National
 Airport [Permit].
Nomen M. Cole, Jr., Pollution    Registration #70714.....................      12/13/1999  January 2, 2001..  52.2420(d).
 Control Plant [Consent                                                                    [page citation]..
 Agreement].
Ogden Martin Systems of          Registration #71895.....................       7/31/1998  January 2, 2001..  52.2420(d).
 Alexandria/Arlington, Inc.                                                                [page citation]..
 [Consent Agreement].
Ogden Martin Systems of          Registration #71920.....................        4/3/1998  January 2, 2001..  52.2420(d).
 Fairfax, Inc. [Consent                                                                    [page citation]..
 Agreement].
U.S. Department of Defense--     Registration #70030.....................       5/17/2000  January 2, 2001..  52.2420(d).
 Pentagon Reservation [Permit].                                                            [page citation]..
Potomac Electric Power Company   Registration #70228.....................       5/31/1998  January 2, 2001..  52.2420(d). Note: the non-RACT related
 (PEPCO)--Potomac River                                                                    [page citation]..   provisions found in subsections 2 and 3
 Generating Station [Consent                                                                                   of Section E are not incorporated by
 Agreement containing NOX RACT                                                                                 reference.
 requirements.].
Potomac Electric Power Company   Registration #70228.....................        5/8/2000  January 2, 2001..  52.2420(d).
 (PEPCO)--Potomac River                                                                    [page citation]..
 Generating Station Permit
 containing VOC RACT
 requirements].
United States Marine Corps.--    Registration #70267.....................       5/24/2000  January 2, 2001..  52.2420(d).
 Quantico Base [Permit].                                                                   [page citation]..
Transcontinental Gas Pipeline    Registration #71958.....................        9/5/1996  January 2, 2001..  52.2420(d).
 Corporation--Compressor                                                                   [page citation]..
 Station #185 [Consent
 Agreement].
U.S. Army Garrison at Fort       Registration #70550.....................       5/16/2000  January 2, 2001..  52.2420(d).
 Belvoir [Permit].                                                                         [page citation]..
Virginia Power (VP)--Possum      Registration #70225.....................       7/21/2000  January 2, 2001..  52.2420(d).
 Point Generating Station                                                                  [page citation]..
 [Permit containing NOX RACT
 requirements].

[[Page 16]]

 
Virginia Power (VP)--Possum      Registration #70225.....................       6/12/1995  January 2, 2001..  52.2420(d).
 Point Generating Station                                                                  [page citation]..
 [Consent Agreement containing
 VOC RACT requirements].
Washington Gas Light Company--   Registration #70151.....................        4/3/1998  January 2, 2001..  52.2420(d).
 Springfield Operations Center                                                             [page citation]..
 [Consent Agreement].
--------------------------------------------------------------------------------------------------------------------------------------------------------

Sec. 52.5450  [Amended]

    3. Section 52.2450(f) is removed and reserved.

[FR Doc. 00-33165 Filed 12-29-00; 8:45 am]
BILLING CODE 6560-50-P