[Federal Register Volume 70, Number 80 (Wednesday, April 27, 2005)]
[Rules and Regulations]
[Pages 21621-21625]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-8441]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R03-OAR-2005-VA-0001; FRL-7904-5]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: Environmental Protection Agency (EPA) is taking direct final 
action to approve revisions to the Commonwealth of Virginia's State 
Implementation Plan (SIP). The revisions were submitted by the Virginia 
Department of Environmental Quality (VADEQ) to establish and require 
reasonably available control technology (RACT) for four major sources 
of nitrogen oxides (NOX). These sources are located in the 
Western Virginia Emissions Control Area. EPA is approving these 
revisions to establish RACT requirements in the SIP in accordance with 
the Clean Air Act (CAA).

DATES: This rule is effective on June 27, 2005, without further notice, 
unless EPA receives adverse written comment by May 27, 2005. 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 Regional Material in 
EDocket (RME) ID Number R03-OAR-2005-VA-0001 by one of the following 
methods:
    A. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    B. Agency Web site: http://www.docket.epa.gov/rmepub/ rmepub/. RME, 
EPA's electronic public docket and comment system, is EPA's preferred 
method for receiving comments. Follow the on-line instructions for 
submitting comments.
    C. E-mail: campbell. david commat;epa.gov.
    D. Mail: R03 - OAR - 2005- VA-0001, David Campbell, Chief, Air 
Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection 
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
    E. 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 RME ID No. R03-OAR-2005-VA-
0001. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
http://www.docket.epa.gov/rmepub/, 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 RME, regulations.gov 
or e-mail. The EPA RME and the Federal regulations.gov Web sites are 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 RME or 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.
    Docket: All documents in the electronic docket are listed in the 
RME index at http://www.docket.epa.gov/rmepub/. Although listed in the 
index, some information is not publicly available, i.e., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically in RME 
or in hard copy during normal business hours at the Air Protection 
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch 
Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal 
are available at 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 epa.gov">quinto.rose@epa.gov.

SUPPLEMENTARY INFORMATION:

[[Page 21622]]

I. Background

    Prior to the establishment of the 8-hour ozone nonattainment areas, 
EPA developed a program to allow these potential nonattainment areas to 
voluntarily adopt local emission control programs to avoid air quality 
violations and mandated nonattainment area controls. Areas with air 
quality meeting the 1-hour ozone standard were eligible to participate. 
In order to participate, state and local governments and EPA developed 
and signed a memorandum of agreement that describes the local control 
measures the state or local community intends to adopt and implement to 
reduce ozone emissions in advance of air quality violations. In this 
agreement, also known as an Early Action Compact (EAC), the state or 
local communities agree to prepare emission inventories and conduct air 
quality modeling and monitoring to support its selection of emission 
controls. Areas that participate in the EAC program have the 
flexibility to institute their own approach in maintaining clean air 
and protecting public health. For a period of time (generally not to 
exceed 5 years), participating areas can avoid a nonattainment 
designation.
    Several localities in the Winchester and Roanoke areas have elected 
to participate in the EAC program. The areas that signed an EAC are the 
City of Winchester and Frederick County, which comprise the Northern 
Shenandoah Valley EAC; and the cities of Roanoke and Salem, and the 
counties of Roanoke and Botetourt, which comprise the Roanoke EAC. 
Virginia's strategy for enabling these localities to participate in the 
EAC program is to have them be subject to volatile organic compound 
(VOC) and NOX control measures from which they had, until 
this time, been exempt. In order to enable the affected localities to 
implement these VOC and NOX controls, the Virginia 
Regulations for the Control of Abatement of Air Pollution were revised 
to include these affected localities. In a separate rulemaking action, 
the list of VOC and NOX emission control areas (9 VAC 5-20-
206) was expanded to include the EAC areas as the Western Virginia 
Emissions Control Area. With this expansion, the VOC and NOX 
control rules of Chapter 40 became applicable in these areas.
    In order to implement the NOX control measures, VADEQ 
adopted a regulation (Rule 4-4) which provides that VADEQ must, on 
case-by-case basis, determine whether there is RACT to reduce 
NOX emissions from major sources for which EPA has not 
issued control techniques guideline (CTG). EPA has approved the 
regulation (Rule 4-4) in a separate rulemaking action. A major source 
in the Western Virginia Emissions Control Area subject to Rule 4-4, 
emits or has the potential to emit 100 tons per year of NOX. 
CTGs are documents issued to define RACT for a particular source 
category. EPA has defined RACT as the lowest emission limit that a 
particular source is capable of meeting by the application of control 
technology that is reasonably available considering technological and 
economic feasibility.
    The following sources in the Western Virginia Emissions Control 
Area have been identified as sources subject to the RACT requirements: 
(1) Roanoke Electric Steel Corporation Steel Mini-Mill located in the 
City of Roanoke, (2) Roanoke Cement Company Portland Manufacturing 
Plant located in Troutville, County of Botetourt; (3) Norfolk Southern 
Railway Company--East End Shops located in the City of Roanoke; and (4) 
Global Stone Chemstone Corporation located in Frederick County.

II. Summary of the SIP Revisions

    On January 31, February 3, 7, and 14, 2005, VADEQ submitted 
revisions to the Virginia SIP which establish and impose RACT for four 
sources of NOX. The Commonwealth's submittals consist of 
permits to operate which impose NOX RACT requirements for 
each source.
    Copies of the actual permits to operate imposing RACT and VADEQ's 
evaluation memoranda are included in the electronic and hard copy 
docket for this final rule. As previously stated, all documents in the 
electronic docket are listed in the RME index at http://www.docket.epa.gov/rmepub/. Publicly available docket materials are 
available either electronically in RME or in hard copy during normal 
business hours at the Air Protection Division, U.S. Environmental 
Protection Agency, Region III, 1650 Arch Street, Philadelphia, 
Pennsylvania 19103. Copies of the State submittal are available at the 
Virginia Department of Environmental Quality, 629 East Main Street, 
Richmond, Virginia 23219.
    The table below identifies the sources and the individual permits 
to operate which are the subject of this rulemaking.

             Western Virginia Emissions Control Area--NOX RACT Determinations for Individual Sources
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                                                         Permit/order or
             Source                     Location           registration         Source type     ``Major source''
                                                              number                                pollutant
----------------------------------------------------------------------------------------------------------------
Roanoke Electric Steel            City of Roanoke....  Registration No.     Steel mill........  NOX
 Corporation.                                           20131.
Roanoke Cement Company..........  Troutville, County   Registration No.     Cement kiln.......  NOX
                                   of Botetourt.        20232.
Norfolk Southern Railway          City of Roanoke....  Registration No.     Rail car and        NOX
 Company--East End Shops.                               20468.               locomotive
                                                                             maintenance.
Global Stone Chemstone            Clear Brook,         Registration No.     Lime manufacturing  NOX
 Corporation--Winchester           Frederick County.    80504.
 Facility.
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III. EPA's Evaluation of the SIP Revisions

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

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

[[Page 21623]]

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 the revisions to the Virginia SIP submitted by 
VADEQ to establish and require NOX RACT for four major 
sources. These SIP revisions are necessary to implement the Early 
Action Compact Plan for the Roanoke and the Northern Shenandoah Valley 
Ozone Early Action Compact Plan. 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 June 27, 2005, without further notice unless EPA 
receives adverse comment by May 27, 2005. 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.

VI. 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

[[Page 21624]]

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 four named 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 June 27, 2005. Filing a 
petition for reconsideration by the Administrator of this final rule 
approving source-specific RACT requirements for four sources in the 
Commonwealth of 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, Nitrogen dioxide, 
Ozone, Reporting and recordkeeping requirements, Volatile organic 
compounds.

    Dated: April 19, 2005.
Donald S. Welsh,
Regional Administrator, Region III.

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 Roanoke Electric Steel Corp., Roanoke Cement Company, 
Norfolk Southern Railway Company--East End Shops and Global Stone 
Chemstone Corporation 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
         Source name             registration   State effective date    EPA approval date      40 CFR part 52
                                    number                                                        citation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Roanoke Electric Steel Corp..  Registration     December 22, 2004     April 27, 2005        52.2420(d)(7)
                                No. 20131.                            [Insert page number
                                                                       where the document
                                                                       begins]
Roanoke Cement Company.......  Registration     December 22, 2004     April 27, 2005        52.2420(d)(7)
                                No. 20131.                            [Insert page number
                                                                       where the document
                                                                       begins]
Norfolk Southern Railway       Registration     December 22, 2004     April 27, 2005        52.2420(d)(7)
 Company--East End Shops.       No. 20468.                            [Insert page number
                                                                       where the document
                                                                       begins]
Global Stone Chemstone         Registration     February 9, 2005      April 27, 2005        52.2420(d)(7)
 Corporation.                   No. 80504.                            [Insert page number
                                                                       where the document
                                                                       begins]
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[FR Doc. 05-8441 Filed 4-26-05; 8:45 am]
BILLING CODE 6560-50-P