[Federal Register Volume 69, Number 174 (Thursday, September 9, 2004)]
[Rules and Regulations]
[Pages 54574-54578]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-20132]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[VA155-5081a; FRL-7809-5]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; NOX RACT Determinations for Two Individual Sources

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve revisions to the

[[Page 54575]]

Virginia State Implementation Plan (SIP). The revisions consist of 
determining the reasonably available control technology (RACT) for the 
control of nitrogen oxides (NOX) from two individual sources 
located in Fairfax County, Virginia; namely, the Central Intelligence 
Agency, and the National Reconnaissance Office. EPA is approving these 
revisions in accordance with the requirements of the Clean Air Act.

DATES: This rule is effective on November 8, 2004, without further 
notice, unless EPA receives adverse written comment by October 12, 
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.

ADDRESSES: Submit your comments, identified by VA155-5081 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: Makeba Morris, Chief, Air Quality Planning Branch, 
Mailcode 3AP21, 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. VA155-5081. 
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 Web site 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 Virginia Department of 
Environmental Quality, 629 East Main Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182, or by e-
mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On April 19 and 21, 2004, the Commonwealth of Virginia submitted 
formal revisions to its State Implementation Plan (SIP). The SIP 
revisions consist of RACT determinations for the control of 
NOX from two individual sources located in Fairfax County, 
Virginia: (1) The Central Intelligence Agency, and (2) the National 
Reconnaissance Office.

II. Summary of SIP Revision

    The following identifies the individual permit conditions for 
implementing RACT.

A. The Central Intelligence Agency, Registration No. 71757

    The Central Intelligence Agency (CIA) operates stationary sources 
of air pollution at the George Bush Center for Intelligence (formerly 
known as CIA Headquarters compound) located in Mclean, Fairfax County, 
Virginia. The Virginia Department of Environmental Quality (VADEQ) 
submitted a permit for CIA to implement RACT requirements for the 
following units: (a) Two Keeler natural gas/distillate oil fired 
boilers (Boilers 002 and 003) each with a maximum heat input capacity 
of 62.5 million Btu/hour; (b) one Cleaver Brooks natural gas/distillate 
oil fired boiler (Boiler 004) with a maximum heat input capacity of 
31.0 million Btu/hour; (c) one Nebraska Industrial natural gas/
distillate oil fired boiler (Boiler 005) with a maximum heat capacity 
of 62.5 million Btu/hour; (d) seven diesel fuel oil fired turbine 
generators (Generators 007 through 013) each with a maximum heat input 
capacity of 45.7 million Btu/hour, and (e) two Superior Boilerworks, 
waste heat recovery natural gas fired boilers (Boilers 041C and 041D) 
with a maximum heat input capacity of 17.5 million Btu/hour each. Test 
ports shall be provided when requested in accordance with the 
applicable performance specification in 40 CFR Part 60, Appendix A.
Boilers (Emissions Units 002, 003, 004, and 005)
    Initial performance tests shall be conducted for NOX on 
the dual fueled boilers (Boilers 002 and 004) to determine compliance 
with the emission limits. Tests shall be conducted and reported and 
data reduced as set forth in 9 VAC 5-50-30, and the test procedures 
contained in each applicable section or subpart listed in 9 VAC 5-50-
410. The details of the tests are to be arranged with VADEQ. The 
facility shall submit an original copy of the test protocol at least 30 
days prior to testing. NOX emissions from each dualed boiler 
(Boilers 002, 003, 004, and 005) shall not exceed 0.25 pounds/MMBtu. 
Compliance with the emission limit shall be demonstrated as provided in 
the initial performance testing no later than November 1, 2005. The 
approved fuels for the four dual fueled boilers (Boilers 002, 003, 004, 
and 005) are: (1) Natural gas with a minimum heat content of 1000 Btu/
cf higher heating value (HHV); and (2) distillate oil that meets the 
ASTM specification for number 1 or 2 fuel oil with a 0.5 percent 
maximum sulfur content per shipment, and minimum heat content of 
138,000 Btu/gallon.
Turbine Generators (Emission Units 007-013)
    The approved fuel for the diesel fired generators (Generators 007-
013 or 7 units) is diesel fuel oil that meets the ASTM specification 
for number 1 or 2 fuel oil with a 0.5 percent maximum sulfur content 
per shipment. The NOX emissions from these seven diesel 
fired turbine generators shall not exceed the following: 188 ppmdv 
corrected to 15 percent oxygen; 35.5 pounds/hour for each units, and 
37.5 tons/year for all 7 units. Compliance with the concentration and 
pound/hour limit shall be demonstrated as provided in the initial 
performance testing no later than November 1, 2005. The seven units 
shall not operate more than 2,100 combined hours per year, calculated 
monthly as the sum of the previous consecutive twelve-month period. 
Initial performance tests shall be conducted for NOX on the 
seven diesel-fired turbine generators to determine compliance with the 
emission limits. Tests shall be conducted and reported and data reduced 
as set forth in 9 VAC 5-50-30, and the test procedures

[[Page 54576]]

contained in each applicable section or subpart listed in 9 VAC 5-50-
410. The details of the tests are to be arranged with VADEQ. The 
facility shall submit a test protocol at least 30 days prior to 
testing.
Heat Recovery Boilers (Emission Units 041C and 041D)
    The approved fuel for the heat recovery boilers (Boilers 041C and 
041D) is natural gas with a minimum heat content of 1000 Btu/cf HHV. 
When firing natural gas, the NOX emissions (in combination) 
from the heat recovery boilers shall not exceed the following: (1) 0.20 
pounds/MMBtu (each); (2) 7 pounds/hour (combined); and (3) 30.66 tons/
year (combined). Compliance with the pound/MMBtu and pound/hour 
emission limits shall be demonstrated as provided in the initial 
performance testing no later than November 1, 2005. Initial performance 
tests shall be conducted for NOX on the heat recovery 
boilers to determine compliance with the emission limits. Tests shall 
be conducted and reported and data reduced as set forth in 9 VAC 5-50-
30, and the test methods and procedures contained in each applicable 
section or subpart listed in 9VAC 5-50-410. The details of the tests 
are to be arranged with VADEQ. The facility shall submit an original 
copy of the test protocol at least 30 days prior to testing. An 
original and two copies of the test results shall be submitted to VADEQ 
within 45 days after the test completion and shall conform to the test 
report format provided by VADEQ.
Facility Wide Conditions
    1. On-Site Records. The facility shall maintain records of emission 
data and operating parameters as necessary to demonstrate compliance 
with this permit. These records shall include, but are not limited to 
the following:
    a. The total amount of NOX emitted from the facility, 
calculated monthly as the sum of the previous consecutive twelve 
months.
    b. Annual consumption of distillate oil and hours of operation for 
the diesel fuel oil fired turbine generators (Generators 007-013) in 
gallons, calculated monthly as the sum of the previous twelve month 
period.
    c. Annual consumption of natural gas in cubic feet, and distillate 
oil, for each fuel burning unit along with the associated emissions for 
each unit shall be calculated monthly as the sum of the previous 
consecutive twelve month period.
    d. The name of the fuel supplier.
    e. The date on which the distillate fuel oil was received.
    f. The volume of distillate fuel oil delivered in the shipment.
    g. A statement that the diesel fuel oil complies with the American 
Society for Testing and Materials (ASTM) specifications D975-02 for 
numbers 1 or 2 low sulfur diesel fuel oil.
    h. A statement that the sulfur content is less than or equal to 
that allowed for type of fuel.
    i. The sulfur content of the diesel fuel oil.
    j. The steps taken for tuning the diesel fired turbine generators 
and the results of the tuning.
    These records shall be available for inspection by VADEQ and shall 
be current for the most recent five years.

B. The National Reconnaissance Office, Registration No. 71988

    Boeing Service Company (BSC) operates the National Reconnaissance 
Office (NRO) in Chantilly, Virginia. This facility is located in 
Westfields Business Park, Fairfax County. VADEQ submitted a permit for 
NRO to implement RACT requirements for five emergency and peak shaving 
diesel engine driven electrical generators (emission units GS-1 through 
GS-5). Each emission unit burns No. 2 diesel fuel oil and has a maximum 
rating of 1600 KW electrical output, normal rating of 2304 horsepower 
at 1800 RPM and 16.1 MMBtu/hour heat input. Test ports shall be 
provided when requested in accordance with the applicable performance 
specification in 40 CFR part 60, Appendix A.

Diesel Engine Electrical Generators (Emission Units GS-1 through GS-5)

    Four initial performance tests shall be conducted on two of the 
five emission units (GS-1 through GS-5) to determine the NOX 
emission rate of the engines. The facility shall conduct the tests to 
determine compliance with the NOX emission limits by 
November 1, 2005. One performance test for each emission tested shall 
be conducted while the generator is operated at 50 to 75 percent of 
maximum load and the second performance test for each emission tested 
shall be performed while the generator is at 90 percent load or 
greater. Tests shall be conducted and reported and data reduced as set 
forth in 9 VAC 5-50-30 using an appropriate EPA Reference Test Method. 
The schedule for testing is to be arranged with VADEQ. The facility 
shall submit an original and one copy of a test protocol at least 30 
days prior to testing. An original and two copies of the test results 
shall be submitted to VADEQ within 45 days after test completion and 
shall conform to the test report format provided by VADEQ. During the 
performance tests, the facility shall collect engine parametric 
operating data and to correlate the data to actual NOX 
emissions. The facility shall also prepare a report, which provides the 
parametric data collected, the correlation to NOX emissions, 
and the selection of appropriate operating ranges for each parametric 
operating parameter. The report shall be submitted to VADEQ along with 
the test report.
    NOX emissions from each No. 2 diesel fuel oil engine 
driven electric generator (GS-1 through GS-5) shall not exceed 39.6 
pounds NOX/hour/engine. Compliance shall be demonstrated by 
a one time NOX emission test on two of the diesel engine/
generator units, and by the proper operation and maintenance of each 
emission unit. The approved fuels for the five engine driven electric 
generators is No. 2 diesel fuel oil which meets the ASTM specification 
for number 1 or 2 fuel oil.
    NOX emissions from the five diesel engine/generator 
units shall be controlled by fuel injection set at three degrees 
retarded timing. The engines shall be provided with adequate access for 
inspection. Compliance shall be demonstrated by determining the timing 
of each engine on an annual basis, if maintenance has been performed on 
that engine.
Facility Wide Conditions
    1. On-Site Records. The facility shall maintain records of emission 
data and operating parameters for emission units GS-1 through GS-5 as 
necessary to demonstrate compliance with this permit. These records 
shall include, but are not limited to the following:
    a. Date of each engine timing determination, timing of each engine, 
and documentation of any corrective action including adjustment of 
engine timing.
    b. Date of maintenance and documentation of any corrective action 
taken during emission unit maintenance.
    c. The name of the No. 2 diesel fuel oil supplier.
    d. The date on which No. 2 diesel fuel oil was received.
    e. The volume of No. 2 diesel fuel oil delivered in each shipment.
    f. A certification that the delivered fuel meets the ASTM 
specification for No. 2 diesel fuel oil.
    These records shall be available for inspection by VADEQ and shall 
be current for the most recent five years.

[[Page 54577]]

III. EPA's Evaluation of the SIP Revisions

    EPA is approving these SIP submittals because the Commonwealth 
established and imposed requirements in accordance with the criteria 
set forth in SIP-approved regulations for imposing RACT. The 
Commonwealth has also imposed recordkeeping, monitoring, and testing 
requirements on these sources sufficient to determine compliance with 
these requirements.

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, 1998, 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, 
1998 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. Final Action

    EPA is approving revisions to the Commonwealth of Virginia's SIP 
which establish and require RACT for the two major sources of 
NOX listed in this document. EPA is publishing this rule 
without prior proposal because the Agency views this as a 
noncontroversial amendment and anticipates no adverse comment. 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 SIP revision if adverse comments are filed. This rule will 
be effective on November 8, 2004, without further notice unless EPA 
receives adverse comment by October 12, 2004. If EPA receives adverse 
comment, EPA will publish a timely withdrawal in the Federal Register 
informing the public that the rule will not take effect. EPA will 
address all public comments in a subsequent final rule based on the 
proposed rule. 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.

IV. 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

[[Page 54578]]

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 two named sources located in Fairfax County, 
Virginia, namely, the Central Intelligence Agency, and the National 
Reconnaissance Office.

C. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action to approve NOX RACT 
determinations for two specific sources located in Fairfax County, 
Virginia must be filed in the United States Court of Appeals for the 
appropriate circuit by November 8, 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 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, Nitrogen dioxide, 
Ozone, Reporting and recordkeeping requirements.

    Dated: August 26, 2004.
Richard J. Kampf,
Acting Regional Administrator.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart VV--Virginia

0
2. In Sec.  52.2420, the table in paragraph (d) is amended by adding 
entries for ``Central Intelligence Agency (CIA), George Bush Center for 
Intelligence'' and ``National Reconnaissance Office, Boeing Service 
Center'' at the end of the table to read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (d) * * *

                               EPA-Approved Virginia Source-Specific Requirements
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                                                           State
           Source name               Permit/order or     effective    EPA approval date       40 CFR part 52
                                   registration number      date                                 citation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Central Intelligence Agency        Registration No.       04/16/04   [Insert Federal      52.2420(d).
 (CIA), George Bush Center for      71757.                            Register page
 Intelligence.                                                        number where the
                                                                      document begins],
                                                                      09/09/04.
National Reconnaissance Office,    Registration No.       04/16/04   [Insert Federal      52.2420(d).
 Boeing Service Center.             71988.                            Register page
                                                                      number where the
                                                                      document begins],
                                                                      09/09/04.
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[FR Doc. 04-20132 Filed 9-8-04; 8:45 am]
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