[Federal Register Volume 64, Number 81 (Wednesday, April 28, 1999)]
[Rules and Regulations]
[Pages 22789-22792]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-9603]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[VA024-5042; FRL-6318-5]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Reasonably Available Control Technology for Major Sources of
Nitrogen Oxides
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision
submitted by the Commonwealth of Virginia. This revision establishes
and requires the implementation of reasonably available control
technology (RACT) on major sources of nitrogen oxides (NOX)
in the Virginia portion of the Metropolitan Washington D.C. serious
ozone nonattainment area. The intended effect of this action is to
grant conditional limited approval of Virginia's regulations to impose
RACT on major sources of NOX.
EFFECTIVE DATE: This final rule is effective on May 28, 1999.
ADDRESSES: Copies of the documents relevant to this action are
available 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; the Air and
Radiation Docket and Information Center, U.S. Environmental Protection
Agency, 401 M Street, SW, Washington, DC 20460; Virginia Department of
Environmental Quality, 629 East Main Street, Richmond, Virginia, 23219.
FOR FURTHER INFORMATION CONTACT: Kristeen Gaffney, (215) 814-2092. Or
by e-mail at gaffney.kristeen@epamail.epa.gov.
SUPPLEMENTARY INFORMATION: On January 26, 1999 (64 FR 3891), EPA
published a notice of proposed rulemaking (NPR) for the Commonwealth of
Virginia. The NPR proposed conditional limited approval of Virginia's
NOX RACT regulations for the Virginia portion of the
Metropolitan Washington D.C. serious ozone nonattainment area. No
comments were received on the proposal.
I. Background
The Clean Air Act requires states to submit rules to implement RACT
on major sources of NOX in ozone nonattainment areas
designated as moderate or above and throughout the Ozone Transport
Region. The definition of major source is determined by the
classification of the nonattainment area and whether or not it is
located in the Ozone Transport Region. A portion of Virginia is part of
the Metropolitan Washington D.C. serious ozone nonattainment area and
that same portion of Virginia is in the Ozone Transport Region.
Therefore, sources in the Virginia portion of the Washington D.C.
nonattainment area which emit or have the potential to emit 50 tons or
more of NOX per year are considered major and are subject to
the NOX RACT requirements of the Act.
On November 9, 1992, the Virginia Department of Environmental
Quality (VADEQ) submitted a revision to its SIP consisting of adopted
regulations to impose NOX RACT on major sources in the
nonattainment area, known in state regulations as the Northern Virginia
Emissions Control Area. The VADEQ supplemented its November 1992
submittal on December 11, 1992. On August 11, 1998, the VADEQ made
another submittal to EPA withdrawing certain provisions of the November
9, 1992 submittal, and forwarding revisions that corrected
typographical errors and recodified and renumbered one of the relevant
regulations, Appendix T (now 9 VAC 5-40-311).
The November 9, 1992 submittal consisted of revisions to Virginia
Regulation 120-01, Part IV, Emission Standards for General Process
Operations (Rule 4-4) and Appendix T, entitled ``Reasonably Available
Control Technology Guidelines for Stationary Sources of Nitrogen
Oxides''. Rule 4-4 was amended to insert a new section, 120-04-0408,
entitled ``Standard for nitrogen oxides''. To accommodate the insertion
of section 120-04-0408, the revision also renumbered the previously
existing sections 120-04-0408 through 120-04-0418, inclusive, as
sections 120-04-0409 through 120-04-0419, inclusive. On April 11, 1998,
the VADEQ submitted a revised version of Appendix T to correct a
technical error in the Virginia Register version of the final rule
dated November 30, 1992. This error was corrected by Virginia in the
Virginia Register on June 23, 1997. On April 11, 1998, the Commonwealth
submitted the corrected version of Appendix T. In addition to the
typographical correction, the Commonwealth also recodified Appendix T
and renumbered it as 9 VAC 5-40-311.
Virginia's rule 120-04-0408 requires certain sources to comply with
the applicable emission limits established in Appendix T (now known as
9 VAC 5-40-311); or to apply for an alternative emission limit through
a source-specific RACT determination process. The emission limits of
section C of 9 VAC 5-40-311 do not cover all categories of
NOX sources. Section C specifically enacts emission limits
for boilers/steam generating units, process heaters and gas turbines.
Other source categories, such as incinerators, reciprocating internal
combustion engines, cement manufacturing and iron/steel manufacturing
are not covered in 9 VAC 5-40-311. Therefore, not all potential major
NOX sources are subject to specific, presumptive ``up-
front'' (i.e. immediately ascertainable) emission limits. Instead, the
regulations establish a process for the Commonwealth to review and
approve individual RACT emission limitations proposed by the sources,
which are then to be submitted to EPA as SIP revisions. Additionally,
subsection 120-04-0408(B) of Virginia's rule allows sources subject to
the presumptive limits in Appendix T (now known as 9 VAC 5-40-311) to
propose alternative RACT on a case-by-case basis provided they submit
the proposal by January 1, 1994. The proposal must include technical
and economic support documentation for the proposed RACT and include a
schedule for compliance as expeditiously as practical but no later than
May 31, 1995.
The Clean Air Act requires states to implement RACT on all major
stationary sources. Process-oriented generic regulations, such as those
submitted by Virginia, which do not include specific and ascertainable
emission limits for all major sources, do not by themselves provide
standards for EPA to approve or disapprove as satisfying the definition
of RACT. Therefore, the Act's RACT requirements are satisfied only
after the specific limits imposed by the Commonwealth on its major
sources have been submitted to EPA as SIP revisions and approved by EPA
as RACT for the subject sources.
In a November 7, 1996 policy memo from Sally Shaver, Director, Air
Quality Strategies and Standards Division of the Office of Air Quality
Planning and Standards, EPA issued guidance for approving state generic
RACT regulations, like Virginia's, provided certain criteria are met.
This guidance does not exempt any major source from RACT requirements
but instead
[[Page 22790]]
provides for a de minimis deferral of RACT only for the purposes of
approving the state's generic RACT regulation. The de minimis deferral
level is determined by using the 1990 NOX emissions,
excluding the utility boiler NOX emissions. The remaining
1990 non-utility boiler emissions are then compared with the amount of
non-utility NOX emissions that have yet to have RACT
approved into the SIP. Generally, EPA expects that all utility boiler
RACTs will be approved prior to application of this de minimis deferral
policy and possible conversion of the generic RACT conditional approval
to full approval. EPA does not expect to defer more than 5 percent of
the emissions calculated in this manner in order to fully approve
Virginia's generic NOX RACT regulation. In accordance with
the November 1996 policy, EPA is requiring that all utility boiler RACT
determinations be approved by EPA and all but a de minimis level of
non-utility boiler RACT determinations be approved into the SIP before
the limited approval can be converted to full approval. Full approval
of a generic RACT regulation under this policy does not change the
Commonwealth's statutory obligation to implement RACT for all major
sources. No major NOX source is being exempted from RACT
requirements through this policy or today's rulemaking.
Because EPA has not received SIP revisions from the Commonwealth
for all source-specific RACT determinations, EPA can at best, according
to the November 7, 1996 policy memorandum, grant conditional limited
approval of Virginia's NOX RACT generic rule. In a letter to
EPA dated April 11, 1998, the VADEQ committed to submit, as SIP
revisions, RACT determinations for all sources either not subject to
the presumptive emission limits in Appendix T or electing alternative
source-specific RACT requirements. The VADEQ committed to submit these
RACT determinations within 12 months of EPA's final conditional limited
approval of its generic rule.
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, 1997, 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,
1997 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.
II. Terms of and Rationale for Conditional Limited Approval
EPA is conditionally approving Virginia's NOX RACT
regulations based upon VADEQ's April 11, 1998 commitment to submit, as
SIP revisions, RACT determinations for all currently known major
sources subject to source-specific NOX RACT requirements. In
accordance with section 110(k)(4) the Act (and consistent with the
VADEQ's commitment letter of April 11, 1998), these RACT determinations
must be submitted by May 30, 2000.
EPA is also granting limited approval of Virginia's NOX
RACT regulations, rule 120-08-0408, and the provisions of 9 VAC 5-40-
311 (formerly Appendix T) as submitted by the VADEQ. The current
Virginia SIP does not contain a general requirement that all major
sources of NOX in the nonattainment area must implement
RACT. While EPA does not believe that the Virginia NOX RACT
regulations fully satisfy the requirements of the Act because of the
generic provisions allowing for source-specific determinations, EPA is
limitedly approving portions of Virginia's NOX RACT
regulations on the basis that they strengthen the SIP. The purpose of
the limited approval of the requirement to implement RACT and the
presumptive emission limits on certain categories of sources is because
they strengthen the Virginia SIP by adding RACT standards for sources
of NOX in the Virginia portion of the Metropolitan
Washington D.C. ozone nonattainment area where none existed before.
Other specific requirements of Virginia's NOX RACT
requirements and the rationale for EPA's action are explained in the
Notice of Proposed Rulemaking and will not be restated here. No public
comments were
[[Page 22791]]
received on the Notice of Proposed Rulemaking.
III. Final Action
EPA is granting conditional limited approval of the Commonwealth's
November 9, 1992 NOX RACT SIP submittal, as modified on
December 11, 1992 and April 11, 1998. EPA's conditional approval is
based upon the April 11, 1998 commitment made by VADEQ to submit,
within 12 months of EPA's final rulemaking of this NOX RACT
SIP, source-specific RACT determinations for all currently known major
sources subject to source-specific NOX RACT requirements.
EPA is also granting limited approval because adding RACT standards for
major sources of NOX in the Northern Virginia Emissions
Control Area where none existed before strengthens the SIP.
To fulfill the conditions of this approval, the Commonwealth must,
by May 30, 2000: (1) Certify that it has submitted, as SIP revisions,
RACT proposals for all sources subject to source-specific
NOX RACT requirements; or (2) demonstrate that the emissions
from any remaining subject sources represent a de minimis level of
emissions (as described above). Once EPA has determined that the
Commonwealth has satisfied this condition, EPA shall remove the
conditional nature of its approval and the Virginia NOX RACT
regulations will, at that time, retain limited approval status. Should
the Commonwealth fail to meet the conditions specified above, the final
conditional limited approval of the NOX RACT regulations SIP
revision shall convert to a disapproval.
IV. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from review under E.O. 12866, entitled ``Regulatory
Planning and Review.''
B. Executive Order 12875
Under E.O. 12875, EPA may not issue a regulation that is not
required by statute and that creates a mandate upon a state, local, or
tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments. If EPA complies by consulting, E.O. requires EPA to
provide to the Office of Management and Budget a description of the
extent of EPA's prior consultation with representatives of affected
state, local, and tribal governments, the nature of their concerns,
copies of written communications from the governments, and a statement
supporting the need to issue the regulation. In addition, E.O. 12875
requires EPA to develop an effective process permitting elected
officials and other representatives of state, local, and tribal
governments ``to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.''
Today's rule does not create a mandate on state, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of E.O. 12875
do not apply to this rule.
C. Executive Order 13045
E.O. 13045, entitled ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies
to any rule that the EPA determines (1) is ``economically
significant,'' as defined under E.O. 12866, and (2) the environmental
health or safety risk addressed by the rule has a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This final rule is not subject to E.O. 13045 because it is not an
economically significant regulatory action as defined by E.O. 12866,
and it does not address an environmental health or safety risk that
would have a disproportionate effect on children.
D. Executive Order 13084
Under E.O. 13084, EPA may not issue a regulation that is not
required by statute, that significantly affects or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments. If EPA complies by
consulting, Executive Order 13084 requires EPA to provide to the Office
of Management and Budget, in a separately identified section of the
preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected and
other representatives of Indian tribal governments ``to provide
meaningful and timely input in the development of regulatory policies
on matters that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the communities
of Indian tribal governments. This action does not involve or impose
any requirements that affect Indian Tribes. Accordingly, the
requirements of section 3(b) of E.O. 13084 do not apply to this rule.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. This final rule will not have a significant impact on a
substantial number of small entities because SIP approvals and
conditional approvals of SIP submittals under section 110 and
subchapter I, part D of the CAA do not create any new requirements but
simply approve requirements that the State is already imposing.
Therefore, because the Federal SIP approval does not impose any new
requirements, I certify that it does not have a significant impact on
any small entities affected. Moreover, due to the nature of the
Federal-State relationship under the Clean Air Act, preparation of a
flexibility analysis would constitute Federal inquiry into the economic
reasonableness of state action. The Clean Air Act forbids EPA to base
its actions concerning SIPs on such grounds. Union Electric Co. v. U.S.
EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
If the conditional approval is converted to a disapproval under
section 110(k), based on the State's failure to meet the commitment, it
will not affect any existing state requirements applicable to small
entities. Federal disapproval of the state submittal does not affect
its state-enforceability. Moreover, EPA's disapproval of the submittal
does not impose a new Federal requirement. Therefore, I certify that
this disapproval action does not have a significant impact on a
substantial number of small entities because it does not remove
existing requirements nor does it substitute a new federal requirement.
F. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
[[Page 22792]]
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
annual costs to State, local, or tribal governments in the aggregate;
or to private sector, of $100 million or more. Under Section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not
include a Federal mandate that may result in estimated annual costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This Federal action approves
pre-existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
G. 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 rule 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. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
H. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action to conditionally limitedly approve
Virginia's NOX RACT regulations must be filed in the United
States Court of Appeals for the appropriate circuit by June 28, 1999.
Filing a petition for reconsideration by the Administrator of this
final rule 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, Incorporation by
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements.
Dated: March 24, 1999.
W. Michael McCabe,
Regional Administrator, Region III.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart VV--Virginia
2. Section 52.2420 is amended by adding paragraphs (c)(131) and
(c)(132) to read as follows:
Sec. 52.2420 Identification of plan.
* * * * *
(c) * * *
(131) Limited approval of revisions to the Virginia State
Implementation Plan submitted on November 9, 1992 by the Virginia
Department of Environmental Quality:
(i) Incorporation by reference.
(A) Letters of November 9, 1992 and December 11, 1992 from the
Virginia Department of Environmental Quality transmitting Virginia rule
120-04-0408 to implement major source NOX RACT requirements
in the Northern Virginia Emissions Control Area.
(B) Virginia regulation 120-04-0408, ``Standard for Nitrogen
Oxides'', pertaining to major source NOX RACT requirements,
effective on January 1, 1993.
(C) Renumbering of previously SIP approved sections in rule 120-04:
-0408 and -0409 to 120-04-0409 and -0410, respectively and previously
SIP approved sections -0412 through -0418 to -0413 through -0419,
respectively, effective January 1, 1993.
(ii) Additional Material--Remainder of November 9, 1992 submittal
and supplemental information submitted by the Virginia Department of
Environmental Quality on December 11, 1992 and August 11, 1998
pertaining to 120-04-0408.
(132) Limited approval of revisions to the Virginia State
Implementation Plan submitted on November 9, 1992 and August 11, 1998
by the Virginia Department of Environmental Quality:
(i) Incorporation by reference.
(A) Letters of November 9, 1992, December 11, 1992 and August 11,
1998 from the Virginia Department of Environmental Quality transmitting
Virginia regulation 9 VAC 5-40-311 (formerly Appendix T) establishing
RACT requirements on major sources in the Northern Virginia Emissions
Control Area.
(B) Addition of Virginia regulation 9 VAC 5-40-311, sections A, B,
C.1, C.2, C.3.b, and C.3.d-g and Errata pages, establishing RACT
requirements for major sources of NOX in the Northern
Virginia Emissions Control Area, effective on July 1, 1997.
(ii) Additional Material--Remainder of November 9, 1992 submittal
and supplemental information submitted by the Virginia Department of
Environmental Quality on December 11, 1992 and August 11, 1998
pertaining to VAC 5-40-311.
3. Section 52.2450 is amended by adding paragraph (f) to read as
follows:
Sec. 52.2450 Conditional approval.
* * * * *
(f) Revisions to the Virginia State Implementation Plan, pertaining
to NOX RACT requirements on major sources in the Northern
Virginia Emissions Control Area, Virginia regulations 120-04-0408 and 9
VAC 5-40-311, submitted on November 9, 1992, December 11, 1992, and
August 11, 1998 by the Virginia Department of Environmental Quality are
conditionally approved. Virginia must meet the following conditions by
no later than May 30, 2000, in accordance with criteria defined in the
EPA Memorandum dated November 7, 1996 from the Director of the Air
Quality Strategies and Standards Division of the Office of Air Quality
Planning and Standards, entitled ``Approval Options for Generic RACT
Rules Submitted to Meet the Non-CTG VOC RACT Requirement and Certain
NOX RACT Requirements.'' This memorandum is available at the
office of the U.S. Environmental Protection Agency, Region III, 1650
Arch Street, Philadelphia, PA 19103. These conditions are:
(1) The VADEQ must certify, in writing, that it has submitted, as
SIP revisions, RACT determinations for all sources subject to source-
specific NOX RACT requirements; or
(2) The VADEQ must demonstrate that the emissions from any
remaining subject sources represent a de minimis level of emissions.
[FR Doc. 99-9603 Filed 4-27-99; 8:45 am]
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