Approval and Promulgation of Air Quality Implementation Plans; Virginia; Approval of Revised Confidentiality Provisions; Approval and Disapproval of Minor New Source Permit Provisions

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[VA032-5013, VA030-5014; FRL-5534-4]

Approval and Promulgation of Air Quality Implementation Plans;

Virginia; Approval of Revised Confidentiality Provisions; Approval and

Disapproval of Minor New Source Permit Provisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is approving in part and disapproving 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 disapproves the public participation

requirements associated with the permitting of minor new sources, and

approves all other revisions to Virginia's revised new source permit

provisions. The intended effect of this action is to approve those

State provisions which meet the requirements of the Clean Air Act, and

disapprove those State provisions which do not. This action is being

taken under section 110 of the Clean Air Act.

EFFECTIVE DATE: This final rule is effective on August 23, 1996.

ADDRESSES: 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; the Air and Radiation Docket and Information Center, U.S.

Environmental Protection Agency, 401 M Street, SW., Washington, DC

20460; and the Virginia Department of Environmental Quality, 629 East

Main Street, Richmond, Virginia, 23219.

FOR FURTHER INFORMATION CONTACT: Harold A. Frankford, (215) 566-2108 or

FRANKFORD.HAROLD@ EPAMAIL.EPA.GOV.

SUPPLEMENTARY INFORMATION: On September 12, 1995 (60 FR 47320), EPA

published a notice of proposed rulemaking (NPR) for the Commonwealth of

Virginia. The NPR proposed approval of revised provisions of the

Virginia Regulations for the Control and Abatement of Air Pollution,

Sections 120-02-30 and 120-08-01 (except for Sections 120-08-01G.1 and

-01G.4.b), as well as the definition of ``confidential information.''

EPA also proposed 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 proposed to disapprove the

public participation requirements set forth in Sections 120-08-01G.1

and -01G.4.b, and retain in its place the current Virginia SIP-approved

public participation provisions of Section 120-08-01C.4.a. The formal

SIP revisions were submitted by Virginia on March 18, 1993 and March

29, 1993.

Other specific requirements of Sections 120-01-02C, 120-02-30, 120-

08-01, and Appendix R submitted March 18, 1993 and March 29, 1993, and

the rationale for EPA's proposed action are explained in the NPR and

will not be restated here. In addition, the following provisions of

Section 120-08-01 govern sources that are not covered by the SIP, and

have neither been reviewed nor evaluated as part of this SIP revision

action:

Sections 120-08-01C.1.b, 120-08-01G.4.a, 120-08-01H.1, 120-08-

01I.2, and 120-08-01J.2.

Summary of Public Comments and EPA Response

During the public comment period, which ended on October 12, 1995,

EPA received two comments. One commenter supported EPA's proposed

action to disapprove the revised public participation requirements set

forth in Section 120-08-01G.1 and 01G.4. The other commenter raised two

issues regarding (1) The scope of the public participation provisions

that the SIP should require and (2) the issue of federal enforceability

in the definitions of ``allowable emissions'' and ``potential to

emit.''

The second commenter urged EPA to approve in its entirety the

revised provisions to Section 120-08-01. With regard to the public

participation issue, the commenter stated that the public participation

provisions in 40 CFR section 51.161 should only apply to federally

required new source review programs; they should not apply to the less

environmentally significant sources subject to new source review. The

commenter further stated its opinion that Virginia has provided

reasonable public participation provisions in its proposed revised SIP,

allowing public comment or hearing only for the most environmentally

significant sources or modifications or sources which have the

potential for public interest concerning air quality issues.

However, this commenter also raised the issue that the wording of

the definitions ``allowable emissions'' and ``potential to emit'' found

in Section 120-08-01B is inconsistent with a recent U. S. Court of

Appeals decision on the issue of federal enforceability [National

Mining Association v. United States Environmental Protection Agency, 59

F.3d 1351 (D.C. Cir. 1995)], and that EPA should address this issue.

The SIP language requires that control requirements be both state and

federally enforceable, while the Court decision holds that such control

requirements are acceptable as long as they are either state

enforceable or federally enforceable.

EPA provides the following response:

(1) With regard to the commenter's statement regarding EPA's

disapproval action, EPA has determined that the thresholds which

constitute environmentally significant modifications are specified in

the definition of ``significant'' found in both 40 CFR section

51.165(a)(1)(x) and Section 120-08-03C of Virginia's air pollution

control regulations. The term

[[Page 38389]]

``significant'' is found in the definition of ``major modification,''

which is spelled out in Section 120-08-03C and cross-referenced in

Section 120-08-01B. EPA had approved these definitions as a revision to

the Virginia SIP on May 4, 1982 (47 FR 19134), and codified them into

the SIP at Sec. 52.2420(c)(69). The effective date of this action was

June 3, 1982. The exemptions specified in the revised wording of

revised Sections 120-08-01G.1 and .01G.4.b exceed both EPA and

Virginia's stated thresholds of ``significant''. In this same action,

EPA had approved the current public participation provisions found in

SIP Section 120-08-01C.4. Since these SIP-approved public participation

provisions apply to the public participation requirements for all major

modifications, while the wording of revised Sections 120-08-01G.1 and

.01G.4.b do not, EPA's decision to disapprove the exemptions specified

in Section 120-08-01G and retain the provisions of SIP Section 120-08-

01C.4 is not inconsistent with the commenter's recommendations.

The wording of the definitions ``allowable emissions'' and

``potential to emit'' found in revised Section 120-08-01 is consistent

with the wording that has been part of the Virginia SIP since it was

codified into the Virginia SIP at Sec. 52.2420(c)(69) [see above].

Accordingly, the court decision referred to by the commenter does not

require EPA to revise these provisions in this action, since they

represent both current State law and currently Federally-enforceable

SIP wording.

Additional Information Provided by Virginia

Virginia has also supplied the additional documentation requested

by EPA pertaining to the impact of the exemptions provided for wood

manufacturing operations and wood sawmills on the applicable Agency

criteria for minor new source permit programs. In a March 18, 1996

letter, Virginia stated that the sawmills and wood manufacturing

operations being exempted from the permitting requirements will not

significantly contribute to ambient levels of PM10 standards.

Virginia reached this conclusion on the basis that (1) Most sawmill

operations are located in highly rural areas, and (2) such operations

would emit particulate matter whose size would exceed 10 microns, and

therefore would not contribute to ambient PM10 levels. Currently,

there are no PM10 nonattainment areas in Virginia.

EPA has reviewed the emissions inventory available from the

Aerometric Information Retrieval System (AIRS) database, and agrees

with these conclusions. The inventory reveals the presence of 68

sources that fall under SIC code 2491 [Sawmills and Planing Mills-

General]. However, fewer than 15 sources in the entire Commonwealth are

classified solely as wood sawmills. All of these sources are classified

as ``B'' or minor sources. Therefore, EPA is satisfied with Virginia's

explanation that the exemptions found in Appendix R will not affect

applicable ambient air quality levels or PSD increments.

Final Action

EPA is approving the revisions to Virginia Regulations 120-08-02C

(definition of ``confidential information'') and 120-02-30 submitted by

Virginia on March 18, 1993, as well as the revisions to Section 120-08-

01 (except as noted below) and Appendix R submitted by Virginia on

March 29, 1993 as revisions to the Virginia SIP. At the same time, EPA

is disapproving the revisions to Section 120-08-01G.1 and G.4.b

submitted by Virginia on March 29, 1993 as revisions of the Virginia

SIP.

Accordingly, EPA is revising 40 CFR 52.2420 (Identification of

plan) to reflect EPA's approval action. At the same time, EPA is

revising 40 CFR 52.2423 (Approval status) to (1) Make the public aware

that in addition to Virginia's criteria, EPA has its own criteria (40

CFR part 2) for determining what information submitted by a State in

support of a Federal action (such as a SIP revision request) can be

kept confidential; and (2) announce EPA's disapproval of revised

provisions to Section 120-08-01G.1 and .01G.4.b as revisions of the

Virginia SIP.

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 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 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

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 costs of $100

million or more to either State, local, or tribal governments in the

aggregate, or to the private sector. This Federal approval action

approves pre-existing requirements under State or local law, and

imposes no new Federal requirements. This Federal disapproval action

maintains pre-existing Federal requirements that have been in effect

since June 3, 1982. Accordingly, no additional costs to State, local,

or tribal governments, or to the private sector, result from this

action.

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 grounds. Union Electric Co. v. U.S.

EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

Similarly, EPA's disapproval of portions of the State request under

Section 110 and subchapter I, part D of the CAA does not affect any

existing requirements applicable to small entities. Any pre-existing

federal requirements remain in place after this disapproval. Federal

disapproval of the state submittal does not affect its state-

enforceability. Moreover, EPA's disapproval of the submittal does not

impose any new Federal requirements. Therefore, EPA certifies that this

[[Page 38390]]

disapproval action does not have a significant impact on a substantial

number of small entities because it does not remove existing

requirements and impose any new Federal requirements.

Under section 801(a)(1)(A) of the Administrative Procedures Act

(APA) as amended by the Small Business Regulatory Enforcement Fairness

Act of 1996, EPA submitted 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 General Accounting

Office prior to publication of the rule in today's Federal Register.

This rule is not a ``major rule'' as defined by section 804(2) of the

APA as amended.

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 Nichols, Assistant Administrator for

Air and Radiation. The Office of Management and Budget (OMB) has

exempted this regulatory action from E.O. 12866 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 September 23, 1996. 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 to approve Virginia's air quality

provisions governing confidentiality of information requirements, as

well as to partially approve and partially disapprove Virginia's air

quality provisions governing minor new source permitting, 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, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Nitrogen dioxide, Ozone, Particulate matter, Reporting and

recordkeeping requirements, Sulfur Oxides.

Dated: June 21, 1996.

Stanely L. Laskowski,

Acting Regional Administrator, Region III.

Chapter I, title 40, of the Code of Federal Regulations is amended

as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401-7671q.

Subpart VV--Virginia

2. Section 52.2420 is amended by adding paragraphs (c)(108) and

(c)(109) to read as follows:

Sec. 52.2420 Identification of plan.

* * * * *

(c) * * *

(108) Revisions to the Virginia Regulations for the Control and

Abatement of Air Pollution submitted on March 18, 1993 by the Virginia

Department of Air Pollution Control:

(i) Incorporation by reference.

(A) Letter of March 18, 1993 from the Virginia Department of Air

Pollution Control transmitting revisions governing confidentiality of

information.

(B) Revisions to Virginia regulations sections 120-01-02C.

(definition of ``confidential information'') and 120-02-30 (revisions

to paragraphs 30A. and 30B.; addition of paragraphs 120-02-30C. through

30E.), adopted October 30, 1992 and effective February 1, 1993.

(ii) Additional material.

(A) Remainder of the March 18, 1993 State submittal pertaining to

both the definition of ``confidential information'' and the revised

provisions to Section 120-02-30.

(109) Revisions to the Virginia Regulations for the Control and

Abatement of Air Pollution submitted on March 29, 1993 by the Virginia

Department of Air Pollution Control:

(i) Incorporation by reference.

(A) Letter of March 29, 1993 from the Virginia Department of Air

Pollution Control transmitting revisions governing confidentiality of

information.

(B) The following provisions of the Virginia regulations, adopted

October 30, 1992 and effective January 1, 1993.

(1) Revisions to Sections 120-08-01A.; 120-08-01C.4; 120-08-01D.;

120-08-01F. [former SIP Section 120-08-01G.]; 120-08-01G. (except for

paragraphs .01G.1, .01G.4.a, and .01G.4.b); 120-08-01H. (except for

paragraph .01H.1) [former SIP Section 120-08-01F, except for paragraph

.01F.2]; 120-08-01I. (except for paragraph .01I.2) [former SIP Section

120-08-01L., except for paragraph .01L.2]; 120-08-01J. [former SIP

Section 120-08-01H.]; 120-08-01K.; 120-08-01L. [former SIP Section 120-

08-01J.]; 120-08-01M. [former SIP Section 120-08-01K.]; 120-08-01P.

[former SIP Section 120-08-01M.]; Addition of Sections 120-08-01N and

120-08-01O.

(2) Revisions to to following definitions in Section 120-08-01B.:

``allowable emissions,'' ``commence,'' ``federally enforceable,''

``modification,'' ``potential to emit,'' ``secondary emissions'' and

``stationary source.''

(3) Revisions to Appendix R, Sections I (title only), II.A, II.P,

II.Q (added), II.R (added), III.A, III.C, III.E, III.G, III.I, III.L,

III.T, III.U, IV., V., and VIII.

(ii) Additional material.

(A) Remainder of the March 29, 1993 State submittal pertaining to

the revisions to Section 120-08-01 (except for paragraphs .01G.1,

.01G.4.a, .01G.4.b, .01H.1, .01I.2, and .01J.2) and Appendix R listed

in paragraphs (c)(109)(i)(B) (1) through (3) of this section.

(B) Letter of March 18, 1996 from the Virginia Department of

Environmental Quality, Air Division, clarifying the effect of the

exemption of wood sawmills from the provisions of Section 120-08-01

(Appendix R, Section II.R).

* * * * *

3. Section 52.2423 is amended by adding paragraphs (o) and (p) to

read as follows:

Sec. 52.2423 Approval status.

* * * * *

(o) EPA approves the revised confidentiality of information

provisions of Sections 120-02-30, submitted by the Virginia Department

of Air Pollution Control on March 18, 1993, as revisions to the

Virginia SIP. However, should Virginia submit a SIP revision request on

behalf of a source, which contains information that 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 part 2. EPA is obligated to keep such information confidential

only if the criteria of 40 CFR part 2 are met.

(p) EPA disapproves the revised public participation provisions of

Sections 120-08-01G.1 and 120-08-01G.4.b, submitted by the Virginia

Department of Air Pollution Control on March 29, 1993, as revisions to

the Virginia SIP. These revised provisions do not meet the requirements

of 40 CFR 51.160 and 51.161. In its place, EPA retains the SIP

provisions of Section 120-08-01C.1.a and 01C.4.b through d. as

originally approved at Secs. 52.2420(c)(69) [SIP section

2.33(a)(5)(ii)] and subsequently revised, due to format changes, at

Secs. 52.2420(c)(89)(i)(B)(7) [SIP section 120-08-01C.4.b].

[FR Doc. 96-18645 Filed 7-23-96; 8:45 am]

BILLING CODE 6560-50-P