[Federal Register Volume 60, Number 176 (Tuesday, September 12, 1995)]
[Proposed Rules]
[Pages 47320-47324]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22336]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[30-1-6372, VA32-1-5999; FRL-5294-1]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Proposed Approval of Revised Confidentiality Provisions;
Proposed Approval and Disapproval of Minor New Source Permit Provisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve in part and disapprove in part
State Implementation Plan (SIP) revisions submitted by the Commonwealth
of Virginia. This action proposes approval of changes submitted by
Virginia in March 1993 to the provisions governing confidentiality of
information. This action proposes disapproval of the public
participation requirements associated with the permitting of minor new
sources, and proposes approval of all other revisions to Virginia's
revised new source permit provisions. The intended effect of this
action is to propose approval of those State provisions which meet the
requirements of the Clean Air Act, and disapprove those State
provisions which do not.
DATES: Comments must be received on or before October 12, 1995.
ADDRESSES: Comments may be mailed to Marcia L. Spink, Associate
Director, Air Programs, Mailcode 3AT00, U.S. Environmental Protection
Agency, Region III, 841 Chestnut Building, Philadelphia, Pennsylvania
19107. Copies of the documents relevant to this action are available
for public inspection during normal business hours at the Air,
Radiation, and Toxics Division, U.S. Environmental Protection Agency,
Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 19107;
Virginia Department of Environmental Quality, 629 East Main Street,
Richmond, Virginia 23219.
FOR FURTHER INFORMATION CONTACT: Harold A. Frankford, (215) 597-1325.
SUPPLEMENTARY INFORMATION: On March 18, 1993 and March 29, 1993, the
Virginia Department of Environmental Quality submitted a series of
amendments to its Regulations for the Control and Abatement of Air
Pollution as formal revisions to its State Implementation Plan (SIP).
These SIP revision submittals are described below.
I. March 18, 1993 Submittal
Virginia submitted revised provisions in Part II (General
Provisions), Section 120-02-30 (Availability of Information) in order
to establish criteria for determining confidential information. A
definition of ``confidential information,'' including the criteria used
to determine confidentiality, is added to Part I (General Definitions),
Section 120-01-02 (Terms Defined).
Section 120-02-30 is revised to (1) emphasize that emissions data
shall be available to the public without exception; (2) provide for
criteria to determine whether information submitted by a regulated
entity may be kept confidential; (3) substitute non-confidential
information for confidential information, or challenge the request to
keep information confidential; determine an owner who files
confidential information which does not meet the established criteria
to be in violation of Commonwealth law. Confidential information must
meet the following criteria:
(1) The owner has taken measures in the past to keep such
information confidential.
(2) The information has not been reasonably obtainable without the
owner's consent by private citizens or other firms. (Exception:
Information obtained through judicial discovery based on a showing of
``special need'' may still be kept confidential from the public.)
(3) Information may not be readily available from sources other
than the owner.
(4) Disclosure of the information would cause ``substantial harm''
to the owner.
Virginia also submitted additional revisions to Parts I and II
(General Provisions). EPA will act upon these revisions in a separate
rulemaking action.
Virginia certified that public hearings were held on September 2,
1992 in Abingdon, Roanoke, Lynchburg, Fredericksburg, Richmond,
Chesapeake, and Springfield.
EPA Evaluation
The determination of confidentiality provisions set forth in the
definition of ``confidential information'' and the provisions of
Section 120-02-30 have been revised to conform with the Virginia
Administrative Code. EPA has determined that these revised provisions
meet the requirements of 40 CFR Section 52.116(a), which requires
states to make emissions data available for public inspection. However,
should Virginia submit a SIP revision request on behalf of a source and
submit information which has been judged confidential under the
provisions of Section 120-02-30, Virginia must request EPA to consider
confidentiality according to the provisions of 40 CFR
[[Page 47321]]
Part 2. EPA is obligated to keep such information confidential only if
the criteria of 40 CFR Part 2 are met.
II. March 29, 1993 Submittal
Virginia submitted revised provisions of Part VIII, Section 120-08-
01 (Permits--new and modified stationary sources). Virginia has also
revised Appendix R (Stationary Source Permit Exemption Levels) as part
of this SIP revision request.
Section 120-01-08A--Applicability
Section 120-08-01A.3 states that sources exempt from this section
must still comply with all other applicable regulations, laws,
ordinances and orders of governmental entities having jurisdiction
(including the Federal government). In addition, any facility which is
exempt from this section, but which exceeds the applicable emissions
standard threshold of Part IV (as if it were an existing source) or the
standard of performance threshold of Part V, shall still be subject to
the more restrictive of these two provisions.
Section 120-08-01A.4 is added to state that increments of
construction or modification, unless specifically part of an approved
planned incremental construction/modification program, shall be added
together to determine whether such activity is subject to the
provisions of Section 120-08-01. This provision is currently found in
Section V.B of SIP-approved Appendix R.
Section 120-08-01B--Definitions
Allowable emissions and potential to emit--The revised wording
makes clear that emission limitations must be both State and Federally
enforceable.
Commence--from cancelled to canceled.
Federally enforceable--extends to federally enforceable operating
permit programs.
``Modification''--(1) ``Amount'' is replaced with ``uncontrolled
emission rate''; (2) the revised definition clarifies that emissions
associated with maintenance, repair and replacement activities which do
not fall within the definition of ``reconstruction'' will not be
considered ``modifications'' (3) the following exclusions are removed:
use of an alternative fuel ordered under the 1974 Energy Supply and
Environmental Coordination Act (ESECA), use of an alternative fuel
ordered under section 125 of the Clean Air Act, and the change in
ownership of an emissions unit.
Section 120-08-01C--General
The provisions of current SIP Section 120-08-01.C.4 are deleted and
replaced with the provisions of new Section 120-08-01G. New Section
120-08-01C.4 is added to state that both the permit application and the
permit itself may combine all applicable provisions of Sections 120-08-
01, 120-08-02 and 120-08-03.
Section 120-08-01D--Applications
The provisions of current SIP Section 120-08-01D.1, describing who
is authorized to sign the permit application, is expanded and relocated
in Section 120-08-01D.3. Section 120-08-01D.2 states that a single
application should identify each emissions point in the emissions unit.
Section 120-08-01D.4 provides the text of a statement which an
applicant must sign certifying that the information is, to the best of
the applicant's knowledge, true, accurate and complete. Section 120-08-
01D.5 requires an applicant to provide a notice from the locality in
which the source is located that the site and operation of the source
are consistent with all local ordinances.
SIP Section 120-08-01F--Standards for Granting Permits
This section is moved to Section 120-08-01H.
Section 120-08-01F--Action on Permit Application (SIP Section 120-08-
01G)
Section 120-08-01F.1 is rewritten to state that within 30 days of
the receipt of a permit application, the board will notify the
applicant as to the status of the application, including (1) a
determination as to which provisions of part VIII are applicable; (2)
identification of deficiencies; and (3) a determination as to whether
the permit application contains sufficient information to begin review.
This provision further distinguishes as to what is meant by
``sufficient'' (i.e., Virginia has enough information to begin review
of the application), and what is meant by ``complete'' (i.e., Virginia
has enough information to forward the application to the State Air
Pollution Control Board for final review and analysis, as well as final
decision).
The provisions in subsections 120-08-01F.2 through F.5 are
rewritten or revised to reflect that all applicable public
participation requirements are now spelled out in Section 120-08-01G.
Section 120-08-01G--Public Participation
Section 120-08-01G consolidates the applicable public participation
requirements that are currently located in SIP sections 120-08-01C.4.
and 120-08-01G.2 through G.6. This section, as revised, applies to all
major stationary sources or major modifications with a net emissions
increase of 100 tons per year of any single pollutant. In addition,
Section 120-08-01G.4 specifies that applications from the following
categories of sources shall be subject to a 30-day public comment
period and if necessary, a public hearing:
(1) major stationary sources and modifications with a net emissions
increase of 100 tons per year of any single pollutant, and which are
not subject to the requirements of either Section 120-08-02 or 120-08-
03; (2) stationary sources which have the potential for public interest
concerning air quality issues; (3) stationary sources of which any
provision of the permit would exceed the height allowed by the State's
definition of good engineering practice (GEP).
Section 120-08-01I.--Application Review and Analysis
The provisions of SIP section 120-08-01L have been moved to this
section.
Section 120-08-01J (Former Section 120-08-01H)--Compliance
Determination and Verification by Performance Testing
1. Section 120-08-01J.3 adds language specifying that the owner of
a source is responsible for conducting initial source testing, as well
as providing the State with written report stating the results of such
testing.
2. Sections 120-08-01J.3, J.4, J.5, and J.6 contain revised
provisions to conform with the revised organization of this subsection.
Section 120-08-01K--Permit Invalidation, Revocation and Enforcement
(SIP Title: Revocation of Permit)
1. Sections 120-08-01K.1 and K.3 contain revised provisions to
conform with the revised organization of this subsection.
2. Sections 120-08-01K.4 through K.9 are added to specify
conditions under which construction and operating permits would be
subject to enforcement action (K.4), limiting terms and conditions
(K.5.), revocation (K.6), suspension (K.7), and civil charges,
penalties and other relief contained under the State's regulatory and
statutory authority (K.8). Section 120-08-01K.9 provides that the State
shall notify applications in writing of its decision and reasons to
change, suspend, revoke, or invalidate a permit. Reasons for revoking a
permit include: (1) Knowingly making misstatements on the permit
application, (2) failing to comply with the terms and conditions of the
permit, (3) failing to comply with any emission standards applicable to
an
[[Page 47322]]
emissions unit included in the permit, (4) causing emissions which
result in violations of any ambient air quality standard or applicable
control strategy, including the SIP-enforceable emission limit in
effect at the time that the application is submitted, and (5) failing
to comply with the applicable provisions of Section 120-08-01. Although
not specified in the language of Section 120-08-09K, EPA interprets the
violation of an ``applicable control strategy'' to also include the
violation of any applicable Prevention of Significant Deterioration
(PSD) increment.
Section 120-08-01L--Existence of Permit No Defense (SIP Section 120-08-
01J); Section 120-08-01M--Compliance With Local Zoning Requirements
(SIP Section 120-08-01K)
There are no changes other than the new subsection designation
within either of these sections.
Section 120-08-01N--Reactivation and Permanent Shutdown (New)
This section establishes provisions for determining what
constitutes a permanent shutdown. Section 120-08-01.N.2 provides that
if a source is shut down permanently, the State shall revoke the permit
by written notification to the owner, and remove the source from its
emissions inventory. If such source chooses to resume operation, then
the owner must apply for another permit. Section 120-08-01N.3 provides
that where the State determines that a source has not operated for a
year or more, it shall notify the owner in writing of its intent to
consider the shutdown as permanent. This section further provides that
a source owner is entitled to a formal hearing on the State's
determination. Section 120-08-01N.4 provides that nothing would prevent
State and the source from making a mutual determination of a mutual
shutdown prior to any decision rendered at the formal hearing.
Section 120-08-01O--Transfer of Permits (New)
This section establishes provisions for notifying the State when a
permitted source undergoes transfer of ownership or change to the
source's name. This section further establishes that a permit may not
be transferred from one location to another or from one piece of
equipment to another, unless the source is considered a portable
facility under Section VII of Appendix R.
Section 120-08-01P--Circumvention
There are no changes other than the new subsection designations
within this section.
Note: The following provisions of Section 120-08-01 pertain to
sources which are not covered by the SIP, and will not be either
reviewed or evaluated as part of this SIP revision action:
Sections 120-08-01C.1.b, 120-08-01G.4.a, 120-08-04H.1, 120-08-
04.I.2.
Appendix R
This Appendix, which replaces current SIP Section 2.33(g), defines
and describes those source categories and thresholds which are either
subject to or exempted from the provisions of Section 120-08-01. The
provisions of Sections VI and IX of Appendix R pertain to sources which
are not covered by the SIP, and will not be either reviewed or
evaluated as part of this SIP revision action. New exemptions from the
provisions of Section 120-08-01 include the following sources: (1)
Solid fuel burning units with a maximum heat input of between 350,000
btu/hr and 1,000,000 btu/hr; (2) new sources of volatile organic
compounds (VOC) with uncontrolled emission rates of less than 25 tons
per year; modified VOC sources with uncontrolled emissions increases of
less than 10 tons per year; (3) new sources of particulate matter
(PM10) with uncontrolled emission rates of less than 15 tons per
year; modified PM10 sources with uncontrolled emissions increases
of less than 10 tons per year; (4) new sources of sulfur dioxide
(SO2) with uncontrolled emission rates of less than 40 tons per
year; (5) new sources of nitrogen dioxide (NO2) with uncontrolled
emission rates of less than 40 tons per year; (6) addition of,
relocation of, or change to a woodworking machine within a wood product
manufacturing plant; (7) all wood sawmills.
Virginia has certified that public hearings were held on July 8,
1992 for all of the above revisions in accordance with 40 CFR Section
51.102. The public hearing locations were Abingdon, Roanoke, Lynchburg,
Fredericksburg, Richmond, Chesapeake, and Springfield.
EPA Evaluation
The Agency requirements for new source permitting are found in 40
CFR part 51, subpart I (Review of New Sources and Modifications),
sections 51.160 through 51.166 inclusive. Section 120-08-01 is designed
to apply to permitting procedures for ``minor'' new sources and
modifications, i.e., sources who would need a permit to construct or
modify, but not be subject to the federally enforceable permitting
requirements established for sources subject to PSD or new source
review in nonattainment areas. EPA is satisfied that the threshold
exemption levels established in Section 120-08-01 and Appendix R would
not exempt sources which should be subject to the permitting procedures
in the latter two categories. Furthermore, EPA is satisfied that the
revised requirements in Section 120-08-01 are consistent with the
criteria listed in Sec. 51.160. Similarly, EPA is satisfied that
exemptions specified in specific types of emissions (such as the
exemption of vessel emissions when calculating secondary emissions) are
consistent with the current requirements of 40 CFR part 51,
specifically the definition of ``secondary emissions'' found in
Secs. 51.165(a)(1)(viii) and 51.166(b)(18).
The provisions of Section 120-08-01N, concerning shutdowns, pertain
only to the procedural mechanisms for permit determinations. In order
to determine whether it is appropriate for shutdown credits to be used
in an attainment demonstration, Virginia has developed a system which
keeps track of shutdowns, pursuant to Section 120-08-03. Therefore,
EPA's evaluation only focuses on the shutdown mechanism and not the
application of shutdown credits. The shutdown mechanisms found in
Section 120-08-01N. are consistent with the criteria listed in
Sec. 51.160.
While the revised provisions of Section 120-08-01 represent an
improvement over the current SIP provisions, one revision significantly
relaxes a current SIP requirement. According to the requirements of 40
CFR sections 51.160 and 51.161, an approved SIP must contain legally
enforceable procedures which provide for the opportunity for public
comment on information submitted by owners and operators of all sources
covered by Section 120-08-01. This requirement is addressed by the SIP-
approved provisions of Section 120-08-01C.4.a. However, the revised
provisions of Sections 120-08-01G.1 and -01G.4.b specifically exempt
major modifications of less than 100 tons per year from the prescribed
public participation requirements. Therefore, the revised provisions of
Sections 120-08-01G.1 and -01G.4.b would no longer meet the public
participation requirements of 40 CFR Section 51.161 since certain major
modifications currently subject to the public participation
requirements of SIP-approved Section 120-08-01 would now be exempt from
such requirements. Therefore, EPA proposes disapproval of
[[Page 47323]]
Virginia's revised Sections 120-08-01G.1 and 120-08-01G.4.b. as
revisions to the Virginia SIP.
The revisions to the provisions of Section 120-08-01 serve to
strengthen its overall enforceability. The definitions of ``allowable
emissions'' and ``potential to emit'' found in Section 120-08-01B.
clearly state that the applicable emissions rates and emissions limits
must be federally enforceable. In addition, the permit exemption
thresholds listed in Appendix R are consistent with those listed in 40
CFR Sections 51.165 and 51.166. Those new and modified sources which
would be covered by the provisions of Section 120-08-01 and which have
the potential to emit of 100 tons or more per year consist of sources
which are not covered by the provisions for PSD (e.g., categories of
sources where the PSD applicability threshold is 250 tons per year or
more) or new source review in nonattainment areas. Section 120-08-01D.
clearly defines the ``responsible official'' required to sign any
application form, report or compliance certification. The revised
definition of ``modification'' has been strengthened now that the ESECA
exemption that had been previously part of the SIP has now been
removed. In addition, the enforceability has been strengthened since
``uncontrolled emissions rate'' is more definitive than ``amount.'' The
definition of ``federally enforceable'' has been expanded to include
operating permits issued under a federally approved program.
Section 120-08-01K expands the conditions under which the State may
revoke a construction permit issued under this section. Although
Section 120-08-01K.6.d. does not specifically state that Virginia will
revoke a permit because of violation of any applicable PSD increment,
EPA can enforce such revocation under the premise that any violation of
the PSD increment constitutes a violation of the SIP control strategy
in effect at the time that the application is submitted.
The revisions to Section 120-08-01 are administrative and
procedural in nature, and contain no emission limits. Therefore, the
revised provisions in and of themselves will have no adverse impact on
air quality.
Section 51.160(a) of 40 CFR part 51 requires states to set forth
enforceable procedures making a state agency responsible to determine
whether the construction or modification of a facility, building,
structure or facility will result in either (1) violations of an
applicable control strategy, or (2) interference with the attainment or
maintenance of a standard in the state where the source is to be
located, or in a neighboring state. States may exempt certain sources
and or source modifications from their permitting requirements if such
exemptions would not violate the provisions of 40 CFR Sec. 51.160(a).
Virginia lists its size threshold and source category exemptions in
Appendix R. The revised Appendix R expands the threshold and categories
of new or modified sources which would be exempt from the permitting
requirements of Section 120-08-01.
In its analysis supporting the revised exemption levels of Appendix
R, Virginia states that wood sawmills and wood manufacturing operations
now exempted from the permitting requirements of Section 120-08-01 are
considered ``small businesses'' whose emissions are likely to be below
the revised PM10 threshold exemption levels and thus, will not
significantly contribute to ambient levels of PM10 standards.
Virginia further states that such operations which meet the
applicability requirements of Sections 120-08-02 (Major Stationary
Sources and Major Modifications Locating in PSD Areas) or 120-08-03
(Major Stationary Sources and Major Modifications Locating in
Nonattainment Areas) must still obtain a permit from Virginia. In
addition, owners of sources exempted from the permitting provisions of
Section 120-08-01 by Appendix R will not be relieved from the
applicability requirements of Section 120-08-01A.3. as described above.
Except as noted below, EPA has determined that the revised
threshold exemption levels established by Virginia and listed in Part
II of Appendix R are stringent enough that the applicable national
ambient air quality standards (NAAQS) and PSD increments will be
protected, and that no applicable control strategy will be violated.
EPA has concluded that the new and modified sources covered by the
requirements of 40 CFR 52.21 and 52.24 contribute more significantly
towards current ambient air quality levels. Although there currently
are no PM10 nonattainment areas in Virginia, EPA requests Virginia
to expand on its analysis that the exemptions of wood sawmills and wood
manufacturing operations from the permitting requirements of Section
120-08-01 (as stated in Appendix R) would meet the requirements of 40
CFR 51.160(a).
Proposed Action
EPA is proposing to approve the revised provisions of Sections 120-
02-30 and 120-08-01 (except for Sections 120-08-01G.1 and -01G.4.a), as
well as the definition of ``confidential information.'' EPA is also
proposing approval of the revised exemption levels of Appendix R,
provided that Virginia supply additional documentation that the
exemptions provided for wood manufacturing operations and wood sawmills
are consistent with all applicable Agency criteria for minor new source
permit programs. At the same time, EPA proposes to disapprove the
public participation requirements set forth in Sections 120-01-08G.1
and -01G.4.a, and retain in its place the current Virginia SIP-approved
public participation provisions of Section 120-08-01C.4.a.
EPA is soliciting public comments on the issues discussed in this
notice or on other relevant matters. These comments will be considered
before taking final action. Interested parties may participate in the
Federal rulemaking procedure by submitting written comments to the EPA
Regional office listed in the ADDRESSES section of this notice.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any state implementation plan. Each request for revision to
the state implementation plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, part D of the
Clean Air Act 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, the
Administrator certifies 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 CAA, 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
[[Page 47324]]
grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976);
42 U.S.C. 7410(a)(2).
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``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
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under section 205, EPA 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 this proposed approval action does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. This proposed Federal action
proposes approval of pre-existing requirements under State or local
law, or retains currently-existing Federal requirements. This proposed
action imposes no new Federal requirements. Accordingly, no additional
costs to State, local, or tribal governments, or to the private sector,
result from this action.
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary R. Nichols, Assistant Administrator
for Air and Radiation. The OMB has exempted this regulatory action from
E.O. 12866 review.
The Administrator's decision to approve or disapprove the SIP
revision pertaining to Virginia's confidentiality of information and
minor new source permit provisions will be based on whether it meets
the requirements of section 110(a)(2)(A)-(K) of the Clean Air Act, as
amended, and EPA regulations in 40 CFR Part 51.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides.
Authority: 42 U.S.C. 7401-7671q.
Dated: August 28, 1995.
W. Michael McCabe,
Regional Administrator, Region III.
[FR Doc. 95-22336 Filed 9-11-95; 8:45 am]
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