[Federal Register Volume 69, Number 101 (Tuesday, May 25, 2004)]
[Rules and Regulations]
[Pages 29658-29662]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-11771]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[VA141-5075a; FRL-7666-5]


Approval and Promulgation of State Air Quality Plans for 
Designated Facilities and Pollutants, Commonwealth of Virginia; Control 
of Emissions From Commercial and Industrial Solid Waste Incinerator 
Units

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve the commercial 
and industrial solid waste incinerator (CISWI) section 111(d)/129 plan 
(the ``plan'') submitted to EPA on September 8, 2003 by the Virginia 
Department of Environmental Quality (DEQ). The plan includes 
supplemental information submitted on August 11, and September 30, 
2003, and April 6, 2004. The plan establishes emission limits, 
monitoring, operating, and recordkeeping requirements for commercial 
and industrial solid waste incinerator units for which construction 
commenced on or before November 30, 1999. Submittal and approval of the 
plan fulfills a Clean Air Act (the Act) requirement for the 
Commonwealth of Virginia.

DATES: This rule is effective on July 26, 2004 without further notice, 
unless EPA receives written comment by June 24, 2004. If EPA receives 
such comments, it will publish a timely withdrawal of the direct final 
rule in the Federal Register and inform the public that the rule will 
not take effect.

[[Page 29659]]


ADDRESSES: Submit your comments, identified by VA141-5075 by one of the 
following methods:
    A. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    B. E-mail: [email protected].
    C. Mail: Walter Wilkie, Chief, Air Quality Analysis Branch, 
Mailcode 3AP22, U.S. Environmental Protection Agency, Region III, 1650 
Arch Street, Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. VA141-5075. 
EPA's policy is that all comments received will be included in the 
public docket without change, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through regulations.gov or e-
mail. The Federal regulations.gov website is an ``anonymous access'' 
system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through 
regulations.gov, your e-mail address will be automatically captured and 
included as part of the comment that is placed in the public docket and 
made available on the Internet. If you submit an electronic comment, 
EPA recommends that you include your name and other contact information 
in the body of your comment and with any disk or CD-ROM you submit. If 
EPA cannot read your comment due to technical difficulties and cannot 
contact you for clarification, EPA may not be able to consider your 
comment. Electronic files should avoid the use of special characters, 
any form of encryption, and be free of any defects or viruses.
    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: James B. Topsale, P.E., at (215) 814-
2190, or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Sections 111(d)/129 of the Act require states to submit plans to 
control certain pollutants (designated pollutants) at existing solid 
waste combustor facilities (designated facilities) whenever standards 
of performance have been established under section 111(b) for new 
sources of the same type, and EPA has established emission guidelines 
(EG) for such existing sources. A designated pollutant is any pollutant 
for which no air quality criteria have been issued, and which is not 
included on a list published under section 108(a) or section 
112(b)(1)(A) of the Act, but emissions of which are subject to a 
standard of performance for new stationary sources. However, section 
129 of the Act, also requires EPA to promulgate EG for CISWI units that 
emit a mixture of air pollutants. These pollutants include organics 
(dioxins/furans), carbon monoxide, metals (cadmium, lead, mercury), 
acid gases (hydrogen chloride, sulfur dioxide, and nitrogen oxides) and 
particulate matter (including opacity). On December 1, 2000 (65 FR 
75338), EPA promulgated CISWI unit new source performance standards and 
EG, 40 CFR part 60, subparts CCCC and DDDD, respectively. The 
designated facility to which the EG apply is each existing CISWI unit, 
as stipulated in subpart DDDD, that commenced construction on or before 
November 30, 1999. See 40 CFR 60.2550 for details.
    Section 111(d) of the Act requires that ``designated'' pollutants, 
regulated under standards of performance for new stationary sources by 
section 111(b) of the Act, must also be controlled at existing sources 
in the same source category to a level stipulated in an emission 
guidelines (EG) document. Section 129 of the Act specifically addresses 
solid waste combustion and emissions controls based on what is commonly 
referred to as ``maximum achievable control technology'' (MACT). 
Section 129 requires EPA to promulgate a MACT based emission guideline 
(EG) document for CISWI units, and then requires states to develop 
plans that implement the EG requirements. The CISWI EG under 40 CFR 
part 60, subpart DDDD, establish emission and operating requirements 
under the authority of the Act, sections 111(d) and 129. These 
requirements must be incorporated into a State plan that is ``at least 
as protective'' as the EG, and is Federally-enforceable upon approval 
by EPA. The procedures for adoption and submittal of State plans are 
codified in 40 CFR part 60, subpart B.

II. Review of the Virginia CISWI Plan

    EPA has reviewed the Virginia CISWI plan in the context of the 
requirements of 40 CFR part 60, and subparts B and DDDD. A summary of 
the review is provided below.

A. Identification of Enforceable State Mechanism(s) for Implementing 
the EG

    On September 8, 2003, the DEQ submitted to EPA the required plan, 
including an enforceable mechanism, the State Air Pollution Control 
Board's Regulation for the Control and Abatement of Air Pollution, 
Emission Standards for Commercial/Industrial Solid Waste Incinerators 
(Rule 4-45). In addition, related applicable Regulations for General 
Administration were submitted on August 11, 2003 and April 6, 2004.

B. Demonstration of Legal Authority

    DEQ's authority is explained in detail in its August 11, 2003 
letter to EPA. The DEQ cites its authority under the Air Pollution 
Control Law of Virginia at Title 10.1, Chapter 13, Code of Virginia. 
This is also discussed in the plan narrative, Section I, Legal 
Authority--State, and the Attorney General's Office certification of 
authority in a July 1, 1998 letter. The DEQ has sufficient statutory 
and regulatory authority to implement and enforce the plan.

C. Inventory of CISWI Units in Virginia Affected by the EG

    The plan contains a DEQ inventory of known existing CISWI units 
that are subject to the plan.

D. Inventory of Emissions From CISWI Units in Virginia

    The submitted plan contains an estimate of emissions from each 
affected facility. Emissions estimates are provided for organics 
(dioxins/furans), carbon monoxide, acid gases (hydrogen chloride, 
sulphur dioxide, and nitrogen oxides), metals (cadmium, lead, mercury), 
and particulate matter.

E. Emission Limitations for CISWI Units

    The state CISWI regulation, Rule 4-45, includes emission limitation 
requirements that are at least as protective as those in the EG, 
subpart DDDD.

F. Compliance Schedules

    Rule 4-45 contains an expeditious compliance schedule provision (9 
VAC 5-40-6420 A) that requires final compliance on or before October 3,

[[Page 29660]]

2004, and it includes separate provisions for extending the compliance 
date. Both the Federal and Virginia plans require that a compliance 
date extension must be submitted to the respective implementing air 
pollution control agency on or before December 3, 2003. Neither air 
pollution control agency has the authority under the Act and related 
rules to grant or approve an extension request submitted after December 
3, 2003. As the Federal plan implementing agency, EPA has no record of 
receiving a compliance date extension request. Therefore, under the 
Virginia plan, final compliance is required on or before October 3, 
2004.

H. Testing, Monitoring, Recordkeeping, and Reporting Requirements

    Rule 4-45 includes the applicable source compliance testing, 
monitoring, recordkeeping, and reporting requirements of the EG.

I. A Record of the Public Hearing on the State Plan

    A public hearing for the plan was held in Richmond, Virginia, on 
August 27, 2003. The DEQ provided evidence of complying with the public 
notice and other hearing requirements of subpart B.

J. Provision for Annual State Progress Reports to EPA

    The DEQ will submit to EPA on an annual basis a report which 
details the progress in the enforcement of the plan. The first progress 
report will be submitted to EPA within one year after approval of the 
Virginia plan.
    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 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 
section 111(d)/129 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.

III. Final Action

    EPA is approving the Virginia CISWI plan for controlling designated 
pollutants under sections 111(d) and 129 of the Act. Accordingly, EPA 
is amending 40 CFR part 62 to reflect this action. As a result, the 
Federal plan is no longer applicable, as of the effective date of this 
action.
    This approval is based on the rationale discussed above and in 
further detail in the technical support document (TSD) associated with 
this action. The DEQ has committed, as part of the plan, to consult 
with EPA and obtain its concurrence before implementing certain actions 
as described in the plan narrative, section J, Discretionary Authority, 
and Regulation for General Administration (9 VAC 5-20-80), Relationship 
of state regulations to Federal regulations.
    As stated above, EPA has no record of receiving a CISWI unit 
compliance date extension request on or before December 3, 2003, as 
required by the Federal plan. As a result, neither EPA or the DEQ now 
have the authority to approve an extension request submitted to either 
agency after the noted date. Therefore, EPA is taking no action to 
approve those provisions of Rule 4-45 that relate to a compliance date 
extension request, sections 9 VAC 5-40-6420 B through 6421 and 6422 
B.2. Final compliance or closure for all affected units must be 
achieved on or before October 3, 2004.
    There are other Rule 4-45 provisions that are not relevant or 
germane to this plan approval action. Those provisions, for example, 
include requirements relating to odor control. A listing of the 
Commonwealth rule provisions that are not part of the plan, except for 
those noted in the previous paragraph, are identified in the plan, 
Attachment A, and DEQ's April 6, 2004 letter, Attachment C.
    As provided by 40 CFR 60.28(c), any revisions to the Virginia plan 
will not be considered part of the applicable plan until submitted by 
the DEQ in accordance with 40 CFR 60.28(a) or (b), as applicable, and 
until approved by EPA in accordance with 40 CFR part 60, subpart B.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse

[[Page 29661]]

comments. This action simply reflects already existing Federal 
requirement for state air pollution control agencies and existing CISWI 
units that are subject to the provisions of 40 CFR part 60, subparts B 
and DDDD, respectively. However, in the ``Proposed Rules'' section of 
today's Federal Register, EPA is publishing a separate document that 
will serve as the proposal to approve the 111(d) plan should relevant 
adverse or critical comments be filed. This rule will be effective July 
26, 2004 without further notice unless the Agency receives relevant 
adverse comments by June 24, 2004. If EPA receives adverse comments, 
EPA will publish a timely withdrawal in the Federal Register informing 
the public that the rule did not take effect. EPA will address all 
public comments in a subsequent final rule based on the proposed rule. 
The EPA will not institute a second comment period on this action. Any 
parties interested in commenting must do so at this time. Please note 
that if EPA receives adverse comment on an amendment, paragraph, or 
section of this rule and if that provision may be severed from the 
remainder of the rule, EPA may adopt as final those provisions of the 
rule that are not the subject of an adverse comment.

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 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 111(d)/129 plan 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 111(d)/129 plan submission for failure to use 
VCS. It would thus be inconsistent with applicable law for EPA, when it 
reviews a 111(d)/129 plan submission, to use VCS in place of a 111(d)/
129 plan 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. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

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 July 26, 2004. 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 Virginia CISWI plan, may not 
be challenged later in proceedings to enforce its requirements. (See 
section 307(b)(2).)

List of Subjects in 40 CFR Part 62

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Aluminum, Fertilizers, Fluoride, 
Intergovernmental relations, Paper and paper products industry, 
Phosphate, Reporting and recordkeeping requirements, Sulfur oxides, 
Sulfur acid plants, Waste treatment and disposal.

    Dated: May 18, 2004.
Richard J. Kampf,
Acting Regional Administrator, Region III.

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40 CFR part 62 is amended as follows:

PART 62--[AMENDED]

0
1. The authority citation for part 62 continues to read as follows:

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

Subpart VV--Virginia

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2. A new center heading, after Sec.  62.11620, consisting of Sec. Sec.  
62.11621, 62.11622, 62.11623 is added to read as follows:
Emissions From Existing Commercial Industrial Solid Waste Incinerators 
(CISWI) Units--Section 111(d)/129 Plan


Sec.  62.11621  Identification of plan.

    Section 111(d)/129 CISWI plan submitted on September 8, 2003, 
including related supplemental information submitted on August 11, and 
September 30, 2003, and April 6, 2004.


Sec.  62.11622  Identification of sources.

    The plan applies to all affected CISWI units for which construction 
commenced on or before November 30, 1999.

[[Page 29662]]

Sec.  62.11623  Identification of plan.

    Effective date of the plan is July 26, 2004.

[FR Doc. 04-11771 Filed 5-24-04; 8:45 am]
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