[Federal Register Volume 71, Number 132 (Tuesday, July 11, 2006)]
[Proposed Rules]
[Pages 39030-39032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-6149]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2006-0059; FRL-8192-8]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; State Implementation Plan Revision for Burlington Industries, 
Clarksville, VA

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) 
revision submitted by the Commonwealth of Virginia. This revision 
pertains to the removal of a Consent Agreement from the Virginia SIP. 
The Consent Agreement was written for the control of emissions of 
sulfur dioxide from the Burlington Industries facility located in 
Clarksville, Mecklenburg County, Virginia. This Agreement has been 
superseded by a federally enforceable state operating permit dated May 
17, 2004, which imposes operating restrictions on the facility's 
boilers and the subsequent shutdown of the remainder of the facility. 
This action is being taken under the Clean Air Act (CAA or the Act).

DATES: Written comments must be received on or before August 10, 2006.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2006-0059 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B.  E-mail: [email protected]
    C. Mail: EPA-R03-OAR-2006-0059, David J. Campbell, Chief, Permits 
and Technical Assistance Branch, Mailcode 3AP11, 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. EPA-R03-OAR-
2006-0059. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at www.regulations.gov, 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 www.regulations.gov or e-mail. 
The www.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 www.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

[[Page 39031]]

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 
www.regulations.gov index. 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 www.regulations.gov 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.

FOR FURTHER INFORMATION CONTACT: Sharon McCauley, (215) 814-3376, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION: On July 12, 2004, the Virginia Department of 
Environmental Quality submitted a revision request to its SIP entitled 
``SIP Revision for Burlington Industries''. The request was for the 
removal of a Consent Agreement incorporated into the Virginia SIP. This 
agreement was written to regulate the control of emissions of sulfur 
dioxide from the Burlington Industries facility located in Clarksville, 
Virginia.

I. Background

    The need to restrict the operation and reduce the allowable sulfur 
dioxide emissions of the Burlington Industries facility was discovered 
through an Air Quality Impact Analysis supporting a Prevention of 
Significant Deterioration permit application submitted by the 
Mecklenburg Cogeneration Limited Partnership. The analysis indicated 
that Burlington Industries had the potential to exceed the primary and 
secondary National Ambient Air Quality Standards (NAAQS) for sulfur 
dioxide when operating at its maximum allowable levels. As a result, 
Burlington Industries voluntarily agreed to a control program with the 
Virginia State Air Pollution Control Board.
    In 1991, Burlington Industries submitted a plan (including proposed 
operating restrictions and a dispersion modeling demonstration) for 
mitigating any potential NAAQS violations. Because no regulations for 
issuing operating permits existed at that time in Virginia, the plan 
was incorporated into a legally enforceable Consent Agreement on 
November 19, 1991 between the Commonwealth and Burlington Industries. 
In order to then make the provisions federally enforceable, Virginia 
submitted the Consent Agreement to EPA as part of a SIP revision, and 
EPA subsequently approved this SIP revision on March 18, 1992 (57 FR 
9388).

II. Summary of SIP Revision

    EPA is proposing to approve this SIP revision submitted by the 
Commonwealth of Virginia. Burlington Industries' federal operating 
(Title V) permit which included conditions from the Consent Agreement 
was issued on December 14, 2001. In 2002, Burlington Industries closed 
its facility and all of the manufacturing equipment was removed; 
however, the boilers remained operable. Burlington Industries requested 
that the Commonwealth impose additional operating restrictions at the 
facility. As a result of these additional restrictions, the facility is 
no longer considered a major source with respect to the Title V 
program. In order to make these new restrictions state and Federally 
enforceable, it is necessary to include Burlington Industries in a new 
Federally enforceable state operating permit, which would then become 
the legally enforceable mechanism for implementing the restrictions.
    The new Federally enforceable state operating permit issued on May 
17, 2004 vacated the original Consent Agreement from Nov. 19, 1991 and 
automatically rendered it ineffective at the state level. In order to 
vacate the Agreement at the federal level, the Virginia SIP must be 
revised to remove the Consent Agreement previously approved at 40 CFR 
52.2420(c)(96), and currently cited at 40 CFR 52.2420(d) and 
52.2465(c)(96). EPA is proposing to remove the Consent Agreement from 
the Virginia SIP.

III. 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.''

[[Page 39032]]

    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.

IV. Proposed Action

    EPA is proposing to approve the removal of the vacated Consent 
Agreement for Burlington Industries from the Virginia SIP. EPA is 
soliciting public comments on the issues discussed in this document. 
These comments will be considered before taking final action.

V. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed 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 proposes to approve state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this proposed 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 proposes to approve 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 proposed rule also does 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), nor will it 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), because it 
merely proposes to approve a state rule implementing a Federal 
requirement, and does not alter the relationship or the distribution of 
power and responsibilities established in the Clean Air Act. This 
proposed rule also is not subject to Executive Order 13045 (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. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this proposed rule, EPA has taken the necessary steps to eliminate 
drafting errors and ambiguity, minimize potential litigation, and 
provide a clear legal standard for affected conduct. EPA has complied 
with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining 
the takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order. 
This proposed rule to approve the Virginia Department of Environmental 
Quality State Implementation Plan revision request for the removal of 
the Consent Agreement for the Burlington Industries facility located in 
Clarksville, Mecklenburg County, VA, does not impose an information 
collection burden under the provisions of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Reporting and 
recordkeeping requirements, Sulfur oxides.

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

    Dated: June 27, 2006.
William T. Wisniewski,
Acting Regional Administrator, Region III.
[FR Doc. 06-6149 Filed 7-10-06; 8:45 am]
BILLING CODE 6560-50-P