[Federal Register Volume 69, Number 238 (Monday, December 13, 2004)]
[Rules and Regulations]
[Pages 72115-72117]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27260]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[VA155-5081; FRL-7847-4]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revisions 
submitted by the Commonwealth of Virginia (Virginia or the 
Commonwealth). The revisions consist of reasonably available control 
technology (RACT) determinations for the control of nitrogen oxides 
(NOX) from two individual sources located in Fairfax County, 
Virginia; namely, the Central Intelligence Agency (CIA), and the 
National Reconnaissance Office (NRO). EPA is approving these revisions 
to establish and impose RACT requirements in accordance with the Clean 
Air Act (CAA).

DATES: Effective Date: This final rule is effective on January 12, 
2005.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
1650 Arch Street, Philadelphia, Pennsylvania 19103; and the Virginia 
Department of Environmental Quality, 629 East Main Street, Richmond, 
Virginia 23219.

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

SUPPLEMENTARY INFORMATION:

I. Background

    On April 19 and 21, 2004, the Virginia Department of Quality (DEQ) 
submitted formal SIP revisions to establish RACT for two individual 
sources of NOX located in Fairfax County, Virginia. The 
Virginia DEQ determined and imposed RACT under the Commonwealth's SIP-
approved generic NOX RACT regulations, 9 VAC 5-40-310 and 9 
VAC 5-40-311. Generic RACT regulations are regulations that do not, 
themselves, specifically define RACT for a source or source category 
but instead establish procedures for imposing case-by-case RACT 
determinations. The Commonwealth's SIP-approved generic NOX 
RACT regulations consist of the procedures DEQ uses to establish and 
impose RACT for subject sources of NOX. Pursuant to the SIP-
approved generic RACT rules, DEQ imposes RACT on each subject source in 
an enforceable document, usually a permit or order. The Commonwealth 
then submits these permits or orders to EPA for approval as source-
specific SIP revisions. EPA approved Virginia's generic NOX 
RACT regulations on April 28, 1999 (64 FR 22792).
    On September 9, 2004 (69 FR 54574), EPA published a direct final 
rule (DFR) approving as SIP revisions DEQ-issued operating permits 
which establish and require RACT for the CIA (Operating Permit 
Registration No. 71757), and the NRO (Operating Permit Registration No. 
71988). A detailed description of the RACT determinations and EPA's 
rationale for approving them were provided in the September 9, 2004 DFR 
and will not be restated herein. In accordance with direct final 
rulemaking procedures, on September 9, 2004 (69

[[Page 72116]]

FR 54600), EPA also published a companion notice of proposed rulemaking 
on these SIP revisions inviting interested parties to comment on the 
DFR. On October 12, 2004, EPA received adverse comment on its proposed 
approval. On November 4, 2004 (69 FR 64259), due to receipt of the 
adverse comment, EPA published a withdrawal of the DFR. A summary of 
the comment received and EPA's response to the comment are provided in 
section II of this document.

II. Public Comment and EPA Responses

    Comment: The commenter, Clean Fuels Technology, Inc., submitted a 
spreadsheet with source testing data indicating that Alternative Diesel 
Oil Emulsion fuels can produce NOX emission limits lower 
than those imposed by the DEQ for the CIA in Operating Permit 
Registration No. 71757, and the NRO in Operating Permit Registration 
No. 71988. The commenter states that the power levels of the test units 
are very similar to the units located at the CIA and NRO facilities in 
Fairfax County, Virginia. The commenter suggests in light of the 
information in the spreadsheet and the cost savings that could accrue 
to the use of fuels less costly than natural gas, that Alternative 
Diesel Oil Emulsion fuels be considered an applicable RACT for the 
control of NOX emissions at the cited sources.
    Response: EPA disagrees with the commenter. The CAA requires that a 
state determine and impose RACT for existing major sources of 
NOX and VOCs located in ozone nonattainment areas and the 
Ozone Transport Region. Those RACT requirements are then to be 
submitted to EPA for approval into the SIP. EPA can only take action on 
a SIP revision as submitted by a state, and cannot, through its 
rulemaking action on a SIP revision, alter the state's submission to 
make its requirements more (or less) stringent. Therefore, even if EPA 
agreed that the commenter submitted convincing evidence that the SIP 
revision submitted by Virginia are not RACT for these facilities, EPA 
could not modify the SIP revision as requested by the commenter, but 
instead could only disapprove the SIP revision submitted by the 
Commonwealth.
    With regard to the criteria EPA uses to determine whether to 
approve or disapprove RACT SIP revisions submitted by the Virginia DEQ 
pursuant to 9 VAC 5-40-310 and 9 VAC 5-40-311 we look to the 
requirements of the CAA and relevant EPA guidance.
    In approving Virginia's NOX RACT regulations, 9 VAC 5-
40-310 and 9 VAC 5-40-311 (RACT Guidelines for Stationary Sources of 
NOX), EPA, thereby, approved the definitions, provisions and 
procedures contained within those regulations under which the 
Commonwealth would require and impose RACT. In accordance with 9 VAC 5-
40-310, subject facilities are required to submit a RACT plan proposal 
to the DEQ. The DEQ then evaluates that RACT plan and determines and 
imposes RACT. The DEQ submits each RACT determination to EPA for 
approval as a SIP revision. Pursuant to CAA requirements for SIP 
revisions, the DEQ conducts a public comment period and public hearing 
on its proposed SIP revision prior to submittal of the revisions to 
EPA. EPA reviews the case-by-case RACT plan approvals and/or permits 
submitted as individual SIP revisions by the Commonwealth to verify and 
determine if they are consistent with the RACT requirements of the CAA 
and any relevant EPA guidance. Then EPA reviews the technical and 
economic analyses conducted by the source and the state. If EPA 
believes additional information may further support or would undercut 
the RACT analyses submitted by the state, then we may add additional 
EPA-generated analyses to the record of our rule to approve or 
disapprove the SIP revision. EPA's review of the Commonwealth of 
Virginia's submission of its RACT determination for the two individual 
sources imposed in DEQ operating permits indicate that the requirements 
of its SIP-approved NOX RACT regulations 9 VAC 5-40-310 and 
9 VAC 5-40-311 have been met.
    While the commenter provides a spreadsheet of testing data from 
source testing performed at other units which indicates lower emission 
rates at those test units, and asserts that the test units' power 
levels are similar to the CIA's and NRO's Virginia-based units, the 
commenter did not submit any additional technical information regarding 
the comparability of the test units to the CIA's and NRO's units (e.g., 
age, specific design, required operating schedules, comparison of 
emissions rates between the test units and the Virginia-based units 
when the later are burning natural gas versus diesel oil) to support 
its suggestion that Diesel Oil Emulsion fuels be considered RACT for 
the specific units located at the CIA's and NRO's Fairfax County, 
Virginia facilities. Nor did the commenter provide any information as 
to the availability and supply of Diesel Oil Emulsion fuels to these 
facilities. The commenter provided no data or information of any kind 
to support the comment that cost savings could accrue to the use of 
fuels less costly than natural gas. Finally, the commenter did not 
submit any justification or analysis to suggest that the RACT limits 
imposed by the Commonwealth are inconsistent with the its SIP-approved 
generic RACT regulations, the CAA or EPA guidance. Because the 
commenter has submitted no new information that would cause us to 
reconsider our analysis that accompanied the proposed rule, we continue 
to believe that analysis supports our approval of the NOX 
RACT determinations imposed by the Virginia DEQ for the CIA's and NRO's 
facilities located in Fairfax County, Virginia.

III. Final Action

    EPA is approving the Virginia DEQ's NOX RACT 
requirements for the two individual sources located in Fairfax County, 
Virginia, namely, the Central Intelligence Agency, and the National 
Reconnaissance Office. EPA is approving these SIP revisions because DEQ 
established and imposed these RACT requirements in accordance with the 
criteria set forth in the SIP-approved RACT regulations applicable to 
these sources. The DEQ has also imposed record keeping, monitoring, and 
testing requirements on the two individual sources sufficient to 
determine compliance with the applicable RACT determinations.

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

[[Page 72117]]

(Public Law 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 two individual sources.

C. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by February 11, 2005. 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 pertaining to the Virginia NOX 
RACT Determinations for the Central Intelligence Agency and the 
National Reconnaissance Office, 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, Incorporation by 
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements.

    Dated: December 6, 2004.
Donald S. Welsh,
Regional Administrator, Region III.

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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

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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 Source Specific Requirements
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                                   Permit/order or
          Source name               registration          State         EPA approval date       40 CFR part 52
                                       number        effective date                                citation
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                                                  * * * * * * *
Central Intelligence Agency      Registration No.          04/16/04  12/13/04 [Insert page    52.2420(d)(6)
 (CIA), George Bush Center for    71757.                              number where the
 Intelligence.                                                        document begins].
National Reconnaissance Office,  Registration No.          04/16/04  12/13/04 [Insert page    52.2420(d)(6)
 Boeing Service Center.           71988.                              number where the
                                                                      document begins].
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[FR Doc. 04-27260 Filed 12-10-04; 8:45 am]
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