[Federal Register Volume 68, Number 58 (Wednesday, March 26, 2003)]
[Rules and Regulations]
[Pages 14542-14545]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-7244]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[VA099-5048; FRL-7472-8]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Approval of Revision to Opacity Limit for Dryer Stacks at 
Georgia-Pacific Corporation Softboard Plant in Jarratt, VA

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve a revised opacity limit 
for dryer zone stacks 1 and 2 associated with the 
Georgia Pacific Corporation (GP) Plant in Jarratt, Virginia. The new 
opacity limit is contained in a consent order between the Virginia 
Department of Environmental Quality (DEQ) and GP. The consent order was 
submitted by DEQ as a State Implementation Plan (SIP) revision on 
February 3, 1999.

EFFECTIVE DATE: This final rule is effective on April 25, 2003.

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; the Air and 
Radiation Docket and Information Center, U.S. Environmental Protection 
Agency, 1301 Constitution Avenue, NW., Room B108, Washington, DC 20460; 
and the Virginia Department of Environmental Quality, 629 East Main 
Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Kathleen Anderson, (215) 814-2173, or 
by e-mail at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On February 3, 1999, DEQ submitted a SIP revision to revise the 
opacity limits for dryer zone stacks 1 and 2 at the 
GP plant in Jarratt, Virginia. The new limits are contained in Consent 
Order No. 50253 which states that GP shall not exceed 50 percent 
opacity from the softboard dryer zone stacks except for one six-minute 
period in any one hour of not more than 60 percent opacity. GP must 
also perform stack tests every two years to determine compliance with 
the particulate matter standards in 9 VAC 5-40-260 of the Commonwealths 
regulations and perform quarterly visible emissions evaluations. The 
consent order also provides that the source may have a waiver of 60 
percent opacity for one six-minute period in any hour during periods of 
start-up, shutdown and malfunction.
    On July 19, 2000 (65 FR 44683), EPA published a direct final rule 
approving the SIP revision for revised opacity limits for dryer zone 
stacks 1 and 2, with the exception of the opacity 
waiver for periods of start-up, shutdown and malfunction. EPA published 
the final rule without prior proposal because we viewed this as a 
noncontroversial revision and anticipated no adverse comments. On the 
same day (65 FR 44709), EPA published a notice of proposed rulemaking 
(NPR) should adverse comments be filed. Adverse comments were received 
and the direct final rule was withdrawn on August 30, 2000 (65 FR 
52650).
    Other specific details on the consent order and EPA's analysis may 
be found in the direct final rule and will not be restated here.

II. Response to Public Comment

    EPA received adverse comments on our proposed approval of the 
revised opacity limits for the GP facility. A summary of those comments 
and EPA's responses are provided as follows:
    Comment: The commentor notes that GP has asked for relief from an 
opacity limit that the facility has been subject to for at least ten 
years and raised the possibility that emissions may have increased due 
to a modification at the plant.
    Response: The Technical Support Document prepared by DEQ in support 
of the SIP revision indicates that GP is an existing source for which 
construction, modification or relocation occurred prior to March 17, 
1972 and that the dryers, which date back to 1948, have never been 
modified.
    EPA and DEQ conducted a joint inspection of the facility on March 
12, May 20 and May 21, 1997 for compliance with the Virginia SIP, 
including Rule 4-1 (Emission Standards for Visible Emissions and 
Fugitive Dust/Emissions). These inspections prompted EPA to issue a 
notice of violation to GP based on the observation of visible emissions 
from dryer 2 in excess of the SIP limits. On July 1, 1997, EPA 
issued a Clean Air Act section 114 request for information, testing and 
monitoring to GP's Jarratt facility. In response to this request, GP 
performed stack tests for particulate matter emissions on both dryer 
stacks using EPA Reference Methods 5 and 202 as well as concurrent 
visible emission testing. These tests confirmed that both stacks were 
in compliance with the particulate matter standards but that dryer 
stack 2 had emissions in excess of the opacity limit. GP's 
request for a waiver is based on the results of this testing. There is 
nothing in DEQ's Technical Support Document to indicate that the 
facility has requested the waiver due to increased emissions associated 
with a

[[Page 14543]]

modification at the plant or that GP has ever been able to comply with 
the opacity standard.
    Comment: The commentor interprets the opacity limit waiver 
provision in DEQ's regulations at 9 VAC 5-40-120 to mean that a waiver 
cannot be granted unless emission test data shows that there is no 
correlation between particulate matter or volatile organic compound 
(VOC) emissions and opacity. The commentor further notes that it 
appears that VOC emissions were not considered in evaluating whether 
the waiver was appropriate.
    Response: The waiver provision in 9 VAC 5-40-120 states that a 
waiver may be granted provided that ``a technical decision is reached 
that the plume opacity observations * * * are not representative of the 
pollutant loading of the plume.'' Opacity observations are generally 
viewed as a surrogate for monitoring particulate matter emissions. In 
fact, it is highly unlikely that any source could demonstrate that 
there is absolutely no correlation between opacity and particulate 
matter emissions. However, DEQ's regulations appropriately use the term 
``representative'' as a test for whether or not a waiver should be 
considered. In other words, a waiver would only be appropriate if 
existing opacity limits are incapable of representing or ensuring 
compliance with a pollutant loading standard, in this case, the 
emission standard for particulate matter. Based on the testing 
conducted by GP, the new opacity standard granted by the waiver will be 
representative of compliance with Virginia's particulate matter 
standard.
    EPA did not consider VOC emissions in our evaluation of the waiver 
because opacity has not been generally established as an accurate or 
appropriate surrogate for VOC emissions.
    Comment: The Commentor questioned whether the relaxation of the 
opacity limit will result in particulate matter or VOC emission 
increases that could subject the facility to new source review 
requirements, specifically the prevention of significant deterioration 
(PSD) program.
    Response: As noted elsewhere in this document, the new opacity 
limit is based on stack testing and visible emissions observations 
conducted during normal operating conditions for the existing facility. 
The new opacity limit is being established to accurately reflect the 
observed visible emissions that correspond to actual measured 
particulate matter emissions from the dryers. A SIP relaxation would 
only trigger PSD if the relaxation would have the potential to allow a 
significant increase in emissions above an actual emissions baseline. 
Since the new opacity limit is based on actual criteria pollutant 
emission levels, it does not have the potential to significantly 
increase emissions above PSD thresholds.
    Comment: The commentor questioned whether EPA considered the impact 
of increased VOC emissions on the Richmond area, which has previously 
been designated as an ozone nonattainment area.
    Response: As discussed previously, the new opacity limit reflects 
existing operations and pollutant emission levels at the GP facility. 
Regardless of whether opacity is an appropriate indicator of VOC 
emissions, the opacity limit is being changed to reflect the visible 
emissions occurring during actual operating conditions. There is no 
reason to conclude that making this adjustment would permit the 
facility to increase its VOC emissions.
    Comment: The commentor states that the purpose of the Clean Air Act 
is to protect and enhance air quality so as to promote the public 
health and welfare and believes that the new opacity limit fails to do 
this. He also questions why the facility was not required to install 
economically reasonable control technology to meet a lower opacity 
limit.
    Response: EPA agrees with the commentor in so far as one of the 
purposes of subchapter I of the Clean Air Act is to protect and enhance 
the quality of the Nation's air resources so as to promote the public 
health and welfare and the productive capacity of its population.'' 42 
U.S.C.A. 7401(b)(1). This subchapter outlines the specific requirements 
that EPA and states must do to fulfill this purpose including, but not 
limited to establishing ambient air quality standards, imposing 
standards of performance for stationary sources and sources of 
hazardous air pollutants, adopting permit programs for new and modified 
sources and state implementation plans for achieving and maintaining 
ambient air quality standards. In other words, subchapter I of the 
Clean Air Act establishes specific requirements that apply equally to 
many emission sources to ensure that its purposes are met. With respect 
to the GP facility, the Virginia SIP has had an opacity limit waiver in 
place since the mid-1980s. The waiver provision does not require the 
source to consider or install reasonably available control technology. 
Furthermore, there is no indication at this time that any other state 
or federal requirement established under subchapter I of the CAA would 
preclude granting the waiver or to require the source to consider 
economically available control technology. Therefore, EPA believes that 
approval of this SIP revision is consistent with the purposes and 
requirements of subchapter I of the Clean Air Act and that it is not 
within EPA's authority to require an analysis of reasonably economical 
control technology prior to approving the new opacity limit for GP as a 
SIP revision.

III. Final Action

    EPA is approving Consent Order No. 50253, with the exception of the 
opacity waiver during periods of start-up, shutdown and malfunction, as 
a revision to the Virginia SIP. The revision consists of revised 
opacity limits for dryer zone stack 1 and 2 located 
at the Georgia-Pacific Softboard Plant in Jarratt, Virginia.

IV. General Information Pertaining to SIP Submittals From the 
Commonwealth of Virginia

    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

[[Page 14544]]

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 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. Statutory and Executive Order Reviews

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. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). 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 (Pub. L. 104-4). This rule also does not 
have tribal implications because it will not have a substantial direct 
effect on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes, 
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). 
This action also does not have Federalism implications because it does 
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). 
This action 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 ``Protection of Children 
from Environmental Health Risks and Safety Risks'' (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. 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 establishing source-
specific requirements for one named source.

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 May 27, 2003. Filing a 
petition for reconsideration by the Administrator of this final rule to 
approve revised opacity limits for the Georgia Pacific Softboard Plant 
in Jarratt, Virginia does not affect the finality of this rule for the 
purposes of judicial review nor does it extend the time within which a 
petition for judicial review may be filed, and shall not postpone the 
effectiveness of such rule or action. This action may not be challenged 
later in proceedings to enforce its requirements. (See section 
307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Particulate matter, Reporting and recordkeeping 
requirements.


[[Page 14545]]


    Dated: March 19, 2003.
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:

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

Subpart VV--Virginia

    2. In Sec.  52.2420, the table in paragraph (d) is amended by 
adding the entry for Georgia Pacific--Jarratt Softboard Plant at the 
end of the table to read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (d) * * *

                               EPA-Approved Virginia Source--Specific Requirements
----------------------------------------------------------------------------------------------------------------
                                   Permit/order or        State
          Source name             registration No.   effectivePdate   EPA approval date  40 CFR part 52 citation
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                                                  * * * * * * *
Georgia Pacific--Jarratt         Registration No.           9/28/98  [3/26/03 Federal    40 FR 52.2420(d); Note:
 Softboard Plant.                 50253.                              Register cite].     In Section E,
                                                                                          Provision 1, the
                                                                                          portion of the text
                                                                                          which reads'' * * *
                                                                                          and during periods of
                                                                                          start-up, shutdown,
                                                                                          and malfunction.'' is
                                                                                          not part of the SIP.
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[FR Doc. 03-7244 Filed 3-25-03; 8:45 am]
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