2021-11652. Delegation of Authority to the Commonwealth of Virginia To Implement and Enforce Additional or Revised National Emission Standards for Hazardous Air Pollutants and New Source Performance Standards

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of delegation of authority.

SUMMARY:

On May 17, 2021, the Environmental Protection Agency (EPA) sent the Commonwealth of Virginia (Virginia) a letter acknowledging that Virginia's delegation of authority to implement and enforce the National Emissions Standards for Hazardous Air Pollutants (NESHAPs) and New Source Performance Standards (NSPS) had been updated, as provided for under previously approved delegation mechanisms. To inform regulated facilities and the public, EPA is making available a copy of EPA's letter to Virginia through this notice.

DATES:

On May 17, 2021, EPA sent Virginia a letter acknowledging that Virginia's delegation of authority to implement and enforce certain Federal NSPS and NESHAPs had been updated.

ADDRESSES:

Copies of documents pertaining to this action are available for public inspection during normal business hours at the Air & Radiation Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, PA 19103-2029. Copies of Virginia's submittal are also available at the Virginia Department of Environmental Quality, 1111 East Main Street, Richmond, VA 23219.

FOR FURTHER INFORMATION CONTACT:

Riley Burger, Permits Branch (3AD10), Air & Radiation Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, PA 19103. The telephone number is [phone], or Mr. Burger can also be reached via electronic mail at [e-mail].

SUPPLEMENTARY INFORMATION:

On November 12, 2020, Virginia notified EPA that Virginia had updated its incorporation by reference of Federal NSPS, NESHAP, and Maximum Available Control Technology (MACT) standards to include many such standards, as they were published in final form in the Code of Federal Regulations (CFR) dated July 1, 2020. On May 17, 2021, EPA sent Virginia a letter acknowledging that Virginia now has the authority to implement and enforce the NSPS, NESHAP, and MACT standards as specified by Virginia in its notice to EPA, as provided for under previously approved automatic delegation mechanisms. All notifications, applications, reports, and other correspondence required pursuant to the delegated NSPS, NESHAP, and MACT must be submitted to both EPA, Region III and to the Virginia Department of Environmental Quality, unless the delegated standard specifically provides that such submittals may be sent to EPA or a delegated State. In such cases, the submittals should be sent only to the Virginia Department of Environmental Quality. A copy of EPA's letter to Virginia follows:

Michael G. Dowd, Director

Air Division

Virginia Department of Environmental Quality

P.O. Box 1105

Richmond, VA 23218

Dear Mr. Dowd:

The United States Environmental Protection Agency (EPA) has previously delegated to the Commonwealth of Virginia (Virginia) the authority to implement and enforce various federal New Source Performance Standards (NSPS), National Emission Standards for Hazardous Air Pollutants (NESHAP), and National Emission Standards for Hazardous Air Pollutants for Source Categories (MACT standards) which are found at 40 CFR parts 60, 61 and 63, respectively. In those actions, EPA also delegated to Virginia the authority to implement and enforce any future federal NSPS, NESHAP or MACT Standards on the condition that Virginia legally adopt the future standards, make only allowed wording changes, and provide specified notice to EPA.

In a letter dated November 12, 2020, Virginia submitted to EPA revised versions of Virginia's regulations which incorporate by reference specified federal NSPS, NESHAP and MACT standards, as those federal standards had been published in final form in the Code of Federal Regulations dated July 1, 2020. Virginia committed to enforcing the federal standards in conformance with the terms of EPA's previous delegations of authority and made only allowed wording changes.

Virginia stated that it had submitted the revisions “to retain its authority to enforce the NSPSs and NESHAPs under the delegation of authority granted by EPA on August 27, 1981 (46 FR 43300) and to enforce the MACT standards under the delegation of authority granted by EPA on January 26, 1999 (64 FR 3938) and January 8, 2002 (67 FR 825).”

Virginia provided copies of its revised regulations which specify the NSPS, NESHAP and MACT Standards which it had adopted by reference. Virginia's revised regulations are entitled 9 VAC 5-50 “New and Modified Stationary Sources,” and 9 VAC 5-60 “Hazardous Air Pollutant Sources.” These revised regulations have an effective date of November 11, 2020.

Based on Virginia's submittal, EPA acknowledges that EPA's delegations to Virginia of the authority to implement and enforce EPA's NSPS, NESHAP, and MACT standards have been updated, as provided for under the terms of EPA's previous delegation of authority actions, to allow Virginia to implement and enforce the federal NSPS, NESHAP and MACT standards which Virginia has adopted by reference as specified in Virginia's revised regulations 9 VAC 5-50 and 9 VAC 5-60, both effective on November 11, 2020.

Please note that on December 19, 2008, in Sierra Club v. EPA,^[1] the United States Court of Appeals for the District of Columbia Circuit vacated certain provisions of the General Provisions of 40 CFR part 63 relating to exemptions for startup, shutdown, and malfunction (SSM). On October 16, 2009, the Court issued a mandate vacating these SSM exemption provisions, which are found at 40 CFR 63.6(f)(1) and (h)(1).

Accordingly, EPA no longer allows sources the SSM exemption as provided for in the vacated provisions at 40 CFR 63.6(f)(1) and (h)(1), even though EPA has not yet formally removed these SSM exemption provisions from the General Provisions of 40 CFR part 63. Because Virginia incorporated 40 CFR part 63 by reference, Virginia should also no longer allow sources to use the former SSM exemption from the General Provisions of 40 CFR part 63 due to the Court's ruling in Sierra Club vs. EPA.

EPA appreciates Virginia's continuing NSPS, NESHAP and MACT standards enforcement efforts, and also Virginia's decision to take automatic delegation of additional or updated NSPS, NESHAP and MACT standards by adopting them by reference.

Sincerely,

Cristina Fernandez, Director

Air and Radiation Division

This notice acknowledges the update of Virginia's delegation of authority to implement and enforce NSPS, NESHAP, and MACT standards.

Dated: May 27, 2021.

Cristina Fernandez,

Director, Air & Radiation Division, Region III.

Footnotes

1.  Sierra Club v. EPA, 551 F.3rd 1019 (D.C. Cir. 2008).