[Federal Register Volume 73, Number 163 (Thursday, August 21, 2008)]
[Proposed Rules]
[Pages 49373-49377]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19422]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2007-0382, EPA-R03-OAR-2008-0113; FRL-8707-4]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Emission Reductions From Large Stationary Internal Combustion 
Engines and Large Cement Kilns

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve State Implementation Plan (SIP) 
revisions for the Commonwealth of Virginia. These revisions, submitted 
by the Virginia Department of

[[Page 49374]]

Environmental Quality (VADEQ), pertain to nitrogen oxides 
(NOX) emission reductions from large stationary internal 
combustion (IC) engines and large cement kilns from five sources 
located in the Commonwealth. The reductions allow Virginia to meet its 
remaining obligations under the NOX SIP Call. This action is 
being taken under the Clean Air Act (CAA).

DATES: Written comments must be received on or before September 22, 
2008.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2007-0382 and EPA-R03-OAR-2008-0113 by one of the following 
methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: [email protected].
    C. Mail: EPA-R03-OAR-2007-0382 and/or EPA-R03-OAR-2008-0113, 
Cristina Fernandez, 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. EPA-R03-OAR-
2007-0382 and/or EPA-R03-OAR-2008-0113. 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 
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 23219.

FOR FURTHER INFORMATION CONTACT: Marilyn Powers, (215) 814-2308, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION: The Virginia Department of Environmental 
Quality submitted four separate SIP revisions to meet the 
NOX SIP Call requirement to address large stationary IC 
engines. These submissions were made on February 26, 2007 for 
Transcontinental Gas Pipeline (Transco) Station 165; March 5, 2007 for 
Transco Station 170; March 12, 2007 for Transco Station 175; and March 
19, 2007 for Transco Station 180. On August 8, 2007, VADEQ submitted a 
SIP revision to meet the NOX SIP Call requirement to address 
NOX emissions from cement manufacturing in the Commonwealth.

I. Background

    EPA issued the NOX SIP Call (63 FR 57356, October 27, 
1998) to require 22 Eastern states and the District of Columbia to 
reduce specified amounts of one of the main precursors of ground-level 
ozone, NOX, in order to reduce interstate ozone transport. 
EPA found that the sources in these states emit NOX in 
amounts that contribute significantly to nonattainment of the 1-hour 
ozone national ambient air quality standard (NAAQS) in downwind states. 
In the NOX SIP Call, the amount of reductions required by 
states were calculated based on application of available, highly cost-
effective controls on certain source categories of NOX. 
These source categories included large fossil fuel-fired electric 
generating units (EGUs) serving a generator with a capacity greater 
than 25 MWe, fossil fuel-fired non-EGUs (such as large industrial 
boilers with a capacity greater than 250 MMBtu/hr), large stationary 
internal combustion engines, and large cement kilns. EPA established a 
model trading rule for large EGUs and non-EGUs that States could adopt 
to participate in the EPA-administered NOX Budget Trading 
program.
    The NOX SIP Call, including the Technical Amendments 
which addressed the 2007 EGU budgets (64 FR 26298, May 14, 1999 and 65 
FR 11222, March 2, 2000), was challenged by a number of state, 
industry, and labor groups. A summary of the NOX SIP Call 
requirements, including details of the court decisions that were made 
in response to challenges to the rule and impacts of the court 
decisions on certain aspects of the rule may be found in EPA's 
rulemaking dated April 21, 2004 (69 FR 21604) entitled, ``Interstate 
Ozone Transport: Response to Court Decisions on the NOX SIP 
Call, NOX SIP Call Technical Amendments, and Section 126 
Rules.'' The relevant portions of the April 21, 2004 rulemaking that 
affect Virginia's obligations under the NOX SIP Call, and 
that pertain to the Commonwealth's requirements for Phase II, are 
discussed in this document to provide background on the SIP revisions 
for Phase II that were submitted by VADEQ.
    On March 3, 2000, the United States Court of Appeals for the 
District of Columbia Circuit (DC Circuit) issued its decision on the 
NOX SIP Call. Michigan v. EPA, 213 F.3rd 663 (DC Dir. 2000). 
While the DC Circuit ruled largely in favor of EPA in support of its 
requirements under the 1-hour ozone NAAQS, it also ruled, in part, 
against EPA on certain issues. The rulings against EPA included two 
areas of the NOX SIP Call that were remanded and vacated, 
and two areas in which EPA was found to have failed to provide adequate 
notice of changes in the rule. In the latter case, the rulings included 
a failure to provide adequate notice of the change in the definition of 
EGU as applied to cogeneration units that supply electricity to a 
utility power distribution system for sale in certain specified 
amounts, and a failure to provide adequate notice of the change in the 
control level EPA assumed for large stationary internal combustion (IC) 
engines. The portions of the NOX SIP Call that were upheld 
by the Court were termed ``Phase I'' of the rule. With the exception of 
the remand of the EGU

[[Page 49375]]

growth factors used in the NOX SIP Call and the requirements 
for the 8-hour ozone NAAQS (which EPA stayed due to uncertainty created 
by the court rulings), those portions of the NOX SIP Call 
that had been remanded back to EPA were finalized in the April 21, 2004 
rulemaking (69 FR 21604) and termed ``Phase II'' of the rule.
    The April 21, 2004 rule finalized specific changes to the 
definition of EGUs as applied to cogeneration units, finalized the 
control levels assumed for large stationary IC engines in the 
NOX SIP Call, adjusted States' total budgets (as necessary) 
to reflect these changes, established a SIP submittal date of April 1, 
2005 for states to address the Phase II portion of the budget, and set 
a compliance date of May 1, 2007 for all affected sources to meet Phase 
II. As a result of these changes, states that were not already meeting 
their total NOX SIP Call emission reduction obligations were 
required to submit a SIP revision by April 1, 2005 to reduce ozone 
season NOX emissions by an incremental amount equivalent to 
the reductions achieved by controlling IC engines to prescribed levels. 
The IC engines that comprise the subject States' Phase II inventory 
were compiled by EPA and termed the EPA's NOX SIP Call 
Engine Inventory (65 FR 1222, March 2, 2000). As finalized in the April 
21, 2005 rulemaking, the amount of the incremental reductions required 
was based upon the level of reductions that would occur if large 
natural gas-fired stationary IC engines were controlled to a level of 
82 percent, and large diesel and dual fuel stationary IC engines were 
controlled to a level of 90 percent.
    The change to the definition of cogeneration units did not have an 
impact on the Phase I budget previously established for Virginia. 
Therefore, in order to meet its Phase II obligations, the State was 
required only to achieve the incremental reductions that EPA calculated 
based on controlling stationary IC engines to prescribed levels. As in 
Phase I of the NOX SIP Call, states have flexibility in how 
they achieve the incremental reductions required under Phase II.
    In the NOX SIP Call Engine Inventory, EPA identified 17 
lean burn engines in Virginia that met the definition of large, natural 
gas-fired IC engines. EPA determined a reduction target of 3343 tons of 
NOX based on a reduction level of 82 percent. In the 
NOX SIP Call inventory, EPA identified five large cement 
kilns and determined a reduction target of 173 tons of NOX 
based on a control level of 30 percent for this source category.
    Virginia's Phase I NOX SIP Call trading program was 
approved as part of the Virginia SIP on November 12, 2002 (67 FR 
68544), with the exception of its flow control provision, which was 
conditionally approved. The conditional approval was converted to a 
full approval on August 25, 2004 (69 FR 52174). The Phase II change to 
the definition of cogen units did not affect the Phase I budget 
previously established for Virginia and will not be discussed in any 
detail here, but a full discussion may be found in the April 21, 2005 
rulemaking. In order to meet its NOX SIP Call Phase II 
obligations, the Commonwealth is required only to achieve the 
incremental reductions that EPA calculated based on a controlling large 
IC engines to prescribed levels.
    In the November 12, 2002 approval, it was noted that the SIP 
revision did not establish requirements for cement manufacturing kilns 
and stationary internal combustion engines, and that Virginia was still 
obligated to submit SIP revisions for additional reductions required to 
meet the State's overall emissions budget.

II. Summary of SIP Revisions

    The table below identifies the sources and the individual state 
operating permits that are the subject of this rulemaking, followed by 
a summary of the SIP revisions for each source category. The Technical 
Support Document (TSD) for this rulemaking contains additional details 
pertaining to EPA's analysis of the State submittals.

                    Large IC Engines and Cement Kilns Subject to the NOX SIP Call in Virginia
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                                                                    Permit/order or
             Source name                       Location             registration No.           Source type
----------------------------------------------------------------------------------------------------------------
Transcontinental Gas Pipeline Corp.    Pittsylvania County....  Registration No. 30864.  Large natural gas-fired
 Station 165.                                                                             internal combustion
                                                                                          engine.
Transcontinental Gas Pipeline Corp.    Appomattox County......  Registration No. 30863.  Large natural gas-fired
 Station 170.                                                                             internal combustion
                                                                                          engine.
Transcontinental Gas Pipeline Corp.    Fluvanna County........  Registration No. 40789.  Large natural gas-fired
 Station 175.                                                                             internal combustion
                                                                                          engine.
Transcontinental Gas Pipeline Corp.    Orange County..........  Registration No. 40782.  Large natural gas-fired
 Station 180.                                                                             internal combustion
                                                                                          engine.
Roanoke Cement Corporation...........  Botetourt County.......  Registration No. 20232.  Cement manufacturing.
----------------------------------------------------------------------------------------------------------------

A. Large Stationary IC Engines

    VADEQ determined that one company, Transco, owns all of the 
potentially affected sources in the State, and chose to impose 3343 
tons of NOX emission reductions from 19 engines located at 
four stations. VADEQ issued federally enforceable State operating 
permits for these Transco stations. The operating permit requirements 
for the engines include NOX emission rate limits and limits 
on hours of operation during the ozone season to achieve the required 
emission reductions. The permits also include provisions for testing, 
parametric monitoring, reporting, and recordkeeping to ensure the terms 
of the permits are met.

B. Cement Manufacturing

    Four long, dry cement kilns that were included as part of the 1995 
NOX SIP Call inventory were permanently shut down in 1996. 
The remaining preheater kiln was reconfigured and upgraded as a 
precalciner kiln to handle the capacity of the facility. VADEQ 
submitted a demonstration that the emissions from the reconfigured 
preheater/precalciner kiln in 2005 has resulted in at least a 30 
percent reduction from the four long, dry kilns and one preheater kiln 
that existed in 1995. The demonstration shows that the kiln is 
maximizing fuel efficiency while minimizing NOX emissions, 
consistent with EPA's ``Alternative Control Techniques Document--
NOX emissions from Cement Manufacturing'' (EPA-453/R94-004). 
The demonstration also shows that the overall emission rate change from 
1995 to 2005 is well over 30 percent. In addition, low NOX 
burners were installed on the kiln in 2006. VADEQ issued a State 
Operating Permit for the low NOX burners on December 22, 
2004, and on June 18, 2007 modified the operating permit to indicate 
that the preheater/precalciner configuration

[[Page 49376]]

with low NOX burners implements the requirements of the 
NOX SIP Call.

III. General Information Pertaining to SIP Submittals From the 
Commonwealth of Virgina

    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 CAA, 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 CAA is likewise unaffected by 
this, or any, state audit privilege or immunity law.

IV. Proposed Action

    EPA's review of the submittals indicates that the Commonwealth of 
Virginia has met the additional emission reduction requirements to 
comply with its overall emissions budget under the NOX SIP 
Call. The SIP revisions address Virginia's remaining obligations under 
the NOX SIP Call, therefore, EPA proposes to approve them 
into 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 the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely proposes to approve state law as 
meeting Federal requirements and does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this action proposing approval of Virginia's remaining 
emission reductions under the NOX SIP Call does not have 
tribal implications as specified by Executive Order 13175 (65 FR 67249, 
November 9, 2000), because the SIP is not approved to apply in Indian 
country located in the state, and EPA notes that it will not impose 
substantial direct costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements.

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


[[Page 49377]]


    Dated: August 14, 2008.
William T. Wisniewski,
Acting Regional Administrator, Region III.
[FR Doc. E8-19422 Filed 8-20-08; 8:45 am]
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