[Federal Register Volume 73, Number 246 (Monday, December 22, 2008)]
[Rules and Regulations]
[Pages 78192-78196]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30212]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2008-0472; FRL-8755-1]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Stafford County Reasonably Available Control Technology Under 
the 8-Hour Ozone National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by theCommonwealth of Virginia. This SIP revision fulfills 
Virginia's reasonably available control technology (RACT) requirements 
under the Clean Air Act (CAA or the Act) with respect to the 8-hour 
ozone national ambient air quality standard (NAAQS) in Stafford County. 
Virginia has fulfilled these requirements by submitting a certification 
that 1-hour ozone NAAQS RACT controls for sources in the Commonwealth 
subject to control technology guidelines (CTGs) and for a single major 
source not subject to any CTG, continue to represent RACT under the 8-
hour NAAQS, and submitting a negative declaration demonstrating that no 
facilities exist in Stafford County that are subject to certain 
enumerated CTGs that have not been adopted by Virginia.

DATES: Effective Date: This final rule is effective on January 21, 
2009.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2008-0472. All documents in the docket are listed in 
the http://www.regulations.gov Web site. Although listed in the 
electronic docket, some information is not publicly available, i.e., 
confidential business information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the Internet andwill be publicly 
available only in hard copy form. Publicly available docket materials 
are available either electronically through http://www.regulations.gov 
or in hard copy 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. 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: Gregory Becoat, (215) 814-2036, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On August 7, 2008 (73 FR 45925), EPA published a notice of proposed 
rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed 
approval of Stafford County's requirements of RACT under the 8-hour 
ozone NAAQS set forth by the CAA. The formal SIP revision was submitted 
by the Virginia Department of Environmental Quality on April 21, 2008.

II. Summary

    Sections 172(c)(1) and 182(b)(2) of the CAA require that all SIPs 
satisfy the nitrogen oxides (NOX) and volatile organic 
compounds (VOCs) RACT requirements that apply in areas that have not 
attained the NAAQS for ozone. See 42 U.S.C. 7502(c)(1), 42 U.S.C. 
7511a(b)(2), and 42 U.S.C. 7511a(f). EPA has determined that States 
that have RACT provisions approved in their SIPs for 1-hour ozone 
nonattainment areas have several options for fulfilling the RACT 
requirements for the 8-hour ozone NAAQS. If a State meets certain 
conditions, it may certify that previously adopted 1-hour ozone RACT 
controls in the SIP continue to represent RACT control levels for 
purposes of fulfilling 8-hour ozone RACT requirements. See Final Rule 
To Implement the 8-Hour Ozone National Ambient Air Quality Standard--
Phase 2; Final Rule To Implement Certain Aspects of the 1990 Amendments 
Relating to New Source Review and Prevention of Significant 
Deterioration as They Apply in Carbon Monoxide, Particulate Matter and 
Ozone NAAQS; Final Rule for Reformulated Gasoline (Phase 2 Rule) 70 FR 
71612, 71655, November 29, 2005. Alternatively, a State may adopt new 
or more stringent regulations that represent RACT control levels, 
either in lieu of or in conjunction with a certification.
    The Commonwealth of Virginia has submitted a certification that 
previously adopted RACT controls in Virginia's SIP that were approved 
by EPA under the 1-hour ozone NAAQS continue to represent RACT for the 
8-hour implementation purposes. This previously adopted RACT consists 
of Virginia's adoption of EPA promulgated CTGs for those source 
categories that apply to existing sources in Stafford County. Virginia 
has also submitted a negative declaration demonstrating that no 
facilities exist in Stafford County for

[[Page 78193]]

those CTGs that have not been adopted by Virginia.
    Virginia has also certified, based on consideration of additional 
research, that the 1-hour ozone NAAQS RACT determination for the only 
major stationary source located in Stafford County not covered by a CTG 
continues to represent RACT under the 8-hour ozone NAAQS. Other 
specific requirements of RACT and the rationale for EPA's proposed 
action are explained in the NPR and will not be restated here.
    On September 8, 2008, EPA received adverse comments from State of 
New Jersey Department of Environmental Protection on the NPR. A summary 
of the comments submitted and EPA's response is provided in Section III 
of this document.

III. Summary of Public Comments and EPA Responses

    Comment: The commenter opposes the approval of the SIP revision 
submitted by Virginia for Stafford County. The commenter notes that 
Stafford County is a moderate ozone nonattainment area, and is required 
to implement RACT on all major VOC and NOX sources, and all 
sources covered by a CTG. The commenter also states that in the final 
rule to implement the 8-hour ozone standard (i.e., the Phase 2 Rule) 
EPA indicates that States may rely on existing CTGs and the prior 1-
hour RACT determinations as presumptive RACT. The comment also states 
that most CTGs and prior 1-hour RACT determinations were done over a 
decade ago, and asserts that the emission limits are no longer RACT 
because of advancements in air pollution control technology. This is 
especially the case, it argues, for nitrogen oxides. Additionally, the 
commenter appears to believe that section 108 of the Act requires EPA 
to review, modify and reissue control technology in a timely fashion, 
that EPA has failed to do so, and that this failure to do so prevents 
EPA from allowing States the discretion of certifying that previous 1-
hour ozone RACT determinations fulfill obligations under the 8-hour 
ozone NAAQS. The commenter also asserts that it is adversely affected 
because it is a downwind state. Finally, the commenter notes that and 
sections 110(a)(2)(D) and Part D of the CAA require upwind states to 
include adequate controls in their SIPs prohibiting interstate 
transport of air pollutants in amounts that contribute to nonattainment 
in any downwind state.
    Response: The commenter correctly notes that Stafford County is a 
moderate ozone nonattainment area and is required to implement RACT on 
all major VOC and NOX sources, and all sources covered by a 
CTG. The RACT provisions of the CAA are set forth in sections 172(c)(1) 
and 182(b)(2) of Part D of the Act. 42 U.S.C. 7502(c)(1), 42 U.S.C. 
7511a(b)(2). Section 172 applies to RACT in so-called ``subpart 1'' 
areas. Stafford County is not a ``subpart 1'' area. RACT, as it applies 
in moderate or above ozone nonattainment areas, or within the OTR, 
i.e., to Stafford County, is a specific requirement set forth in 
Section 182(b)(2) of Part D of the Act. Section 182(b)(2) identifies 
the categories of sources to which RACT applies. Section 182(b)(2) does 
not specify the level of control required to meet the RACT requirement.
    The commenter also correctly acknowledges that the Phase 2 Rule, 70 
FR 71612, explicitly addressed whether, and the circumstances under 
which, states may continue to rely on existing CTGs and the prior 1-
hour RACT determinations. Specifically, in the Phase 2 Rule, EPA 
determined that States may certify that ``previously required RACT 
controls represent RACT for 8-hour implementation purposes.'' 70 FR at 
71652.
    The commenter does not allege that EPA's approval of the SIP 
revision is inconsistent with the provisions of the Phase 2 Rule. The 
final action establishing those provisions was taken by EPA, not in 
today's action, but in the Federal Register notice for the Phase 2 Rule 
published on November 29, 2005, 70 FR 71612. Challenges to the Phase 2 
Rule have been brought by commenter and others in the U.S. Court of 
Appeals for the District of Columbia. Natural Resources Defense Council 
v. EPA (D.C. Cir. No. 06-1045 and consolidated cases).
    The Phase 2 Rule, in fact, explicitly addresses the State's 
obligation to consider new information when deciding whether to certify 
that prior RACT determinations remain valid for the 8-hour ozone NAAQS. 
The commenter does not allege that the State has failed to satisfy that 
obligation, or that it has not met any other requirements in the Phase 
2 Rule for certifying that its prior RACT determinations remain valid 
for the 8-hour ozone NAAQS. Thus, while we agree with commenter that 
many of the CTGs have not been revised since they were issued, we do 
not agree that it is therefore improper for EPA to approve this SIP 
revision. In the Phase 2 Rule, EPA specifically addressed concerns 
arising from our recognition that ``the CTGs/ACTs * * * may not provide 
the most accurate picture of current control options.'' 70 FR at 71655.
    In response, we decided that ``States and other interested parties 
should consider available information that may supplement the CTG and 
ACT documents. In cases where additional information is presented, for 
example, as part of notice-and-comment rulemaking on a RACT SIP 
submittal, States (and EPA) would necessarily consider the additional 
data in reviewing what control obligation is consistent with RACT.'' 70 
FR at 71655. Only after conducting this review may a State certify that 
a 1-hour ozone RACT determination continues to represent an appropriate 
RACT level of control for the 8-hour ozone program. Id. Absent data 
indicating that the previous RACT determination is no longer 
appropriate, the State may certify that the existing 1-hour RACT 
determination fulfills the requirement for 8-hour ozone RACT, and the 
State need not submit in its SIP a new RACT requirement for those 
sources. Id.
    Although the commenter broadly alleges that the CTGs no longer 
reflect RACT because they have not been updated recently, the commenter 
does not identify any specific deficiencies or indicate which, if any, 
of the particular CTGs adopted by Virginia it believes to be defective. 
Furthermore, no evidence in the record indicates that Virginia either 
determined--or that anyone brought to its attention during the notice 
and comment rulemaking for this SIP submission--that evidence existed 
to cast doubt on the appropriateness under the 8-hour ozone NAAQS of 
any of the previously adopted and SIP-approved CTGs. A commenter bears 
some burden of bringing to an agency's attention at least some 
particulars of an alleged defect in a rulemaking. See, International 
Fabricare Inst. v. EPA, 972 F.2d 384, 391 (D.C. Cir. 1992).
    In sum, the commenter has not identified any new information that 
has become available, but that the State did not consider and has not 
even alleged that any particular CTG actually adopted into the Virginia 
SIP fails to represent RACT under the 8-hour ozone NAAQS. Thus, under 
the specific terms of the Phase 2 ozone implementation rule, Virginia 
is entitled to rely on that Rule's presumption that absent evidence to 
the contrary, a state may certify that CTGs previously adopted to meet 
1-hour ozone NAAQS continue to meet the requirements for RACT under the 
8-hour ozone NAAQS. See 70 FR at 71652, 71654-55.
    With respect to the single major source in Stafford County that is 
not subject to a CTG, Virginia took reasonable steps to seek out 
additional information to assure that the 1-hour

[[Page 78194]]

ozone NAAQS source-specific RACT determination for this source 
continues to represent RACT under the 8-hour ozone NAAQs. This is 
consistent with our determination in the Phase 2 Rule that the 
certification must be submitted with appropriate supporting 
information, including the consideration of new data. In all cases 
where additional information is presented, States (and EPA) must 
consider the additional information as part of that rulemaking, and 
absent such information, the State may certify existing RACT as meeting 
the 8-hour ozone requirements. 70 FR at 71655.
    Virginia reviewed EPA's RACT/BACT/LAER clearinghouse for sources 
within the same Standard Industrial Classification code as the sole 
major non-CTG source in Stafford County, and determined that there was 
no information to indicate that the 8-hour ozone RACT determination 
should be different from the August 10, 1998 1-hour ozone RACT 
determination for this facility, which has been approved by EPA. See 66 
FR 8, January 2, 2001. Based on the forgoing, the low potential 
emissions from the facility, and the even lower actual emissions from 
the facility, Virginia determined in its SIP submission, consistent 
with the Phase 2 Rule, that the existing 1-hour RACT determination 
could be certified as fulfilling the 8-hour ozone RACT requirements. As 
with our analysis with respect to the CTG RACT certification, we 
believe that Virginia is entitled to rely on the Phase 2 Rule's 
presumption that absent evidence to the contrary, a state may certify 
this 1-hour ozone NAAQS determination as meeting the requirements for 
RACT under the 8-hour ozone NAAQS.
    We also do not agree with commenter's apparent beliefs regarding 
section 108 of the Clean Air Act. With respect to that section, the 
commenter states that ``[a]ccording to Section 108(c) of the Clean Air 
Act, EPA has an obligation to review, modify and reissue control 
techniques'' and that ``USEPA has failed to do so in a timely 
fashion.'' Section 108 of the Act provides that ``the Administrator 
shall from time to time review, and as appropriate, modify or reissue 
any criteria or information on control techniques. * * *'' Section 108 
does not establish time frames for the Administrator to review, modify, 
or reissue control techniques. Furthermore, section 108 provides that 
the review, modification or reissuance of a RACT is only to be done 
``as appropriate.'' EPA believes that Congress left the decision 
whether to review, modify or reissue a control technique to the 
Administrator's discretion.
    Finally, with respect to the comments related to requirements of 
section 110(a)(2)(D) and Part D of the Act, EPA agrees with the 
commenter that section 110(a)(2)(D) requires, among other things, that 
a State's SIP needs to contain provisions to regulate the interstate 
transport of air pollution that significantly contributes to 
nonattainment or interferes with maintenance of a NAAQS in another 
State. 42 U.S.C. 7411(a)(2)(D). Although Title I, Part D of the Act 
does not contain similar language, section 184 is within Title I, Part 
D of the Act. Section 184 contains specific provisions to address 
interstate transport of ozone and its precursors within the Ozone 
Transport Region (OTR) (which includes both New Jersey and Stafford 
County). This comment, however, is not relevant to the present action 
because EPA is not taking action here to determine whether Virginia has 
satisfied the requirements of CAA sections 110(a)(2)(D) or 184. EPA has 
never interpreted the RACT provisions in section 172(c)(1) or 182(b)(2) 
as requiring States to address interstate transport issues. Indeed, EPA 
has expressly stated in the Phase 2 Rule that we ``believe [] that 
section 172(c) is not the appropriate section of the CAA to address the 
transport of ozone and ozone precursors * * *'' 70 FR at 71653. We 
believe, based on the forgoing, that the section 182(b)(2) RACT 
requirements also are not intended as a mechanism for addressing 
interstate transport of pollutants.

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 (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

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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. Final Action

    EPA is approving the SIP revision submitted to EPA by the 
Commonwealth of Virginia on April 21, 2008. This SIP revision contains 
the requirements of RACT set forth by the CAA under the 8-hour ozone 
NAAQS.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, 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 CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this 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 (Public Law 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR43255, 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 CAA; 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 rule 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.

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. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

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 20, 2009. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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 Stafford County RACT under the 8-
hour ozone NAAQS, 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, Volatile organic compounds.

    Dated: December 11, 2008.
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 40 CFR 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 (e) is amended by adding 
the entry for RACT under the 8-hour ozone NAAQS-Stafford County at the 
end of the table to read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
    Name of non-regulatory SIP          Applicable           State                                Additional
             revision                geographic area    submittal date   EPA approval date       explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
RACT under the 8-Hour NAAQS......  Stafford County....       4/21/2008  [Insert Federal
                                                                         Register page
                                                                         number where the
                                                                         document begins
                                                                         and date].
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 [FR Doc. E8-30212 Filed 12-19-08; 8:45 am]
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