[Federal Register Volume 78, Number 232 (Tuesday, December 3, 2013)]
[Proposed Rules]
[Pages 72609-72611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-28958]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[EPA-R03-OAR-2013-0164; FRL-9903-75-Region 3]
Approval and Promulgation of State Air Quality Plans for
Designated Facilities and Pollutants; Commonwealth of Virginia; Control
of Emissions From Existing Sewage Sludge Incineration Units
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve a section plan submitted by the
Commonwealth of Virginia for sewage sludge incineration (SSI) units.
The section plan contains a state rule for existing SSI units and was
submitted as a result of the March 21, 2011 promulgation of Federal new
source performance standards (NSPS) and emission guidelines for SSI
units. This action is being taken under sections of the Clean Air Act
(CAA).
DATES: Written comments must be received on or before January 2, 2014.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2013-0164 by one of the following methods:
A. www.regulations.gov. Follow the on-line instructions for
submitting comments.
B. Email: [email protected].
C. Mail: EPA-R03-OAR-2013-0164, Kathleen Cox, Associate Director,
Office of Air Permits and Toxics, Mailcode 3AP10, 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
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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-
2013-0164. 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 email. 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 email comment
directly to EPA without going through www.regulations.gov, your email
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: Mike Gordon, at (215) 814-2039, or by
email at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
Section 129 of the CAA requires EPA to establish performance
standards and emission guidelines for various types of new and existing
solid waste incineration units. Section 129(b)(2) requires States to
submit to EPA for approval section 111(d)/129 plans that implement and
enforce the promulgated emission guidelines. Section 129(b)(3) requires
EPA to promulgate a federal plan (FP) within two years from the date on
which the emission guidelines, or revision to the emission guidelines,
is promulgated. The FP is applicable to affected facilities when the
state has failed to receive EPA approval of the section 111(d)/129
plan. The FP remains in effect until the state submits and receives EPA
approval of its section 111(d)/129 plan. State submittals under CAA
sections 111(d) and 129 must be consistent with the relevant emission
guidelines, in this instance 40 CFR part 60, subpart MMMM, and the
requirements of 40 CFR part 60, subpart B and part 62, subpart A.
Section 129 of the CAA regulates air pollutants that include organics
(dioxins/furans), carbon monoxide, metals (cadmium, lead, and mercury),
hydrogen chloride, sulfur dioxide, nitrogen oxides, and particulate
matter (which includes opacity).
On December 12, 2012, the Virginia Department of Environmental
Quality (VADEQ) submitted to EPA a formal section 111(d)/129 plan for
SSI units. The submitted section 111(d)/129 plan was in response to the
March 21, 2011 promulgation of Federal NSPS and emission guidelines
requirements for SSI units, 40 CFR part 60, subparts LLLL and MMMM,
respectively (76 FR 15372).
II. Summary of Virginia's Section 111(d)/129 Plan for Existing SSI
Units
EPA has reviewed the Virginia section 111(d)/129 plan submittal in
the context of the requirements of 40 CFR part 60, subparts B and MMMM,
and part 62, subpart A. In this action, EPA is proposing to determine
that the submitted section 111(d)/129 plan meets the above-cited
requirements. Included within the section 111(d)/129 plan are
regulations under the Virginia Administrative Code (VAC), specifically
Article 55 of 9VAC5 Chapter 40, entitled ``Emission Standards for
Sewage Sludge Incineration Units.'' A detailed explanation of the
rationale behind this proposed approval is available in the Technical
Support Document (TSD).
III. General Information Pertaining to Section 111(d)/129 Plan
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 that: (1) Are generated or developed
before the commencement of a voluntary environmental assessment; (2)
are prepared independently of the assessment process; (3) demonstrate a
clear, imminent and substantial danger to the public health or
environment; or (4) 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
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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 section 111(d)/129
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 is proposing to approve the Virginia section 111(d)/129 plan
for SSI units submitted pursuant to 40 CFR part 60, subpart MMMM.
Therefore, EPA is proposing to amend 40 CFR part 62, subpart VV to
reflect this action. This approval is based on the rationale previously
discussed and in further detail in the TSD associated with this action.
The scope of the proposed approval of the section 111(d)/129 plan is
limited to the provisions of 40 CFR parts 60 and 62 for existing SSI
units, as referenced in the emission guidelines, subpart MMMM.
The EPA Administrator continues to retain authority for several
tasks, as stipulated in 40 CFR Sec. 60.5050 as well as the ``Plan
Provisions'' section of Virginia's section 111(d)/129 plan submittal.
This retention of federal authority includes the granting of waivers
for performance tests.
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 (Public Law 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 CAA. This proposed rule
also is not subject to Executive Order 13045 (62 FR 19885, April 23,
1997), because it approves a state rule implementing a Federal
standard.
In reviewing VADEQ's submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the CAA. 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 VADEQ submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a VADEQ
submission, to use VCS in place of a VADEQ submission that otherwise
satisfies the provisions of the CAA. 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 for the approval of VADEQ's section 111(d)/129 plan
for SSI units 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 62
Environmental protection, Administrative practice and procedure,
Air pollution control, Aluminum, Fertilizers, Fluoride,
Intergovernmental relations, Paper and paper products industry,
Phosphate, Reporting and recordkeeping requirements, Sulfur oxides,
Sulfur acid plants, Waste treatment and disposal.
Dated: November 15, 2013.
W.C. Early,
Acting, Regional Administrator, Region III.
[FR Doc. 2013-28958 Filed 12-2-13; 8:45 am]
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