Approval and Promulgation of Air Quality Implementation Plans; Virginia; Rule Pertaining to VOC RACT Requirements

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[VA021-5015; FRL-5697-9]

Approval and Promulgation of Air Quality Implementation Plans;

Virginia; Rule Pertaining to VOC RACT Requirements

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 pertains to

amendments to Virginia's reasonably available control technology (RACT)

requirements for major stationary sources of volatile organic compounds

(VOCs) located in the Richmond moderate ozone nonattainment area and

the Northern Virginia portion of the Metropolitan Washington D.C.

serious ozone nonattainment area. The intended effect of this action is

to approve the submitted amendments to Virginia's major source VOC RACT

requirements because they strengthen Virginia's SIP. This action is

being taken under section 110 of the Clean Air Act.

EFFECTIVE DATE: This final rule is effective on April 11, 1997.

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 Virginia Department of Environmental Quality, 629 East Main

Street, Richmond, Virginia, 23219.

FOR FURTHER INFORMATION CONTACT: Kristeen Gaffney, (215) 566-2092.

SUPPLEMENTARY INFORMATION:

I. Background Information

A formal SIP revision was submitted by Virginia on November 6, 1992

amending its VOC RACT regulation applicable to non-CTG sources. Non-CTG

sources are those major stationary sources or categories of stationary

sources of VOC that are not otherwise subject to RACT by a SIP-approved

regulation developed pursuant to a control technique guideline (CTG)

document.

On September 27, 1995, EPA published a direct final approval of the

SIP revision (60 FR 49767). The intended effect of this action was to

approve the amendments Virginia submitted for its major source VOC RACT

requirements because those amendments strengthened the SIP and

satisfied the ``RACT Catch-Up'' requirements of section 182 (a)(2)(A)

of the Clean Air Act (the Act). EPA issued the direct final rulemaking

without prior proposal because the Agency viewed it as noncontroversial

and anticipated no adverse public comments. The final approval was

published in the Federal Register with a provision for a 30 day comment

period (60 FR 49767). Concurrently, a notice of proposed rulemaking

(NPR) pertaining to the same amendments to Virginia's VOC RACT

requirements was also published in the Federal Register on September

27, 1995 (60 FR 49813). EPA announced that the final rule would convert

to a proposed rule in the event that adverse comments were submitted to

EPA within 30 days of publication of the final rule. Since EPA received

one adverse comment regarding the direct final rule during the

prescribed comment period, the final rule converted to a proposal, and

on December 8, 1995 (60 FR 62990), EPA withdrew its otherwise effective

date.

Today's final rulemaking action addresses the comment received

during the public comment period and announces EPA's final action on

this SIP revision. Other specific requirements of VOC RACT ``Catch-

Ups'' and the rationale for EPA's action were explained in the

rulemaking notices published on September 27, 1995 and will not be

restated here.

II. Public Comment and EPA's Response

One letter of comment was submitted on the action taken by EPA on

September 27, 1995. The letter was submitted on behalf of the Bear

Island Paper Company on October 26, 1995. The following discussion

summarizes and responds to the comments received.

Comment: The commenter stated that EPA should not approve the

revision to Virginia's SIP because the regulation does not address

circumstances where, despite the best efforts of Virginia and the

subject source, the compliance deadline cannot be met because an

appropriate RACT level cannot be determined within a timely fashion.

The commenter suggests that the SIP revision be rewritten to set forth

a new compliance deadline or, alternatively, set forth a mechanism for

establishing a new deadline. The commenter argues that these provisions

are warranted because EPA has not issued the relevant guidance

documents required by section 183 of the CAA. The commenter asserts

that Virginia has not been able to rely on EPA guidance in determining

RACT for many sources.

EPA Response: EPA disagrees with the commenter's remarks. The

Commonwealth of Virginia chose the appropriate deadline of May 31,

1995, for compliance of all Non-CTG sources subject to RACT. The May

31, 1995 deadline for compliance with RACT was established in the CAA

section 182(b)(2). Section 182(b)(2) requires states to submit SIP

revisions requiring RACT on major stationary sources of VOCs that

``provide for the implementation of the required measures as

expeditiously as practicable but no later than May 31, 1995.'' Sources

wishing to receive an extension of the RACT compliance deadline have

the ability to request a compliance date extension from the

Commonwealth of Virginia. In those instances where a source can clearly

demonstrate the need for a compliance date extension from a SIP

regulation's deadline, and the Commonwealth of Virginia determines such

a compliance date extension is justifiable, the Commonwealth may

[[Page 11333]]

request a approval of a source-specific SIP revision.

III. Final Action

EPA is approving the revisions to Virginia rule Sec. 120-04-0407

``Standard for Volatile Organic Compounds'' submitted on November 6,

1992 as a revision to 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.

IV. Administrative Requirements

A. Executive Order 12866

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.

B. Regulatory Flexibility Act

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, EPA

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).

C. Unfunded Mandates

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

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 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.

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added 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 5

U.S.C. 804(2).

E. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action to approve revisions to the Virginia SIP

VOC control requirements must be filed in the United States Court of

Appeals for the appropriate circuit by May 12, 1997. 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, Hydrocarbons,

Incorporation by reference, Ozone.

Dated: February 25, 1997.

Stanley 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)(106) to read

as follows:

Sec. 52.2420 Identification of plan.

* * * * *

(c) * * *

(106) Revisions to the Virginia State Implementation Plan submitted

on November 6, 1992 by the Virginia Department of Environmental

Quality:

(i) Incorporation by reference.

(A) Letter of November 6, 1992 from the Virginia Department of

Environmental Quality transmitting revisions to Virginia's State

Implementation Plan, pertaining to volatile organic compound

requirements in Virginia's air quality regulations adopted by the

Virginia State Air Pollution Control Board on October 30, 1992 and

effective on January 1, 1993.

(B) Revisions to Sec. 120-04-0407 (A), (B), and (C) that lower the

applicability threshold for RACT to 50 tons per year in the Virginia

portion of the Metropolitan Washington, D.C. serious ozone

nonattainment area and add a RACT compliance date of May 31, 1995 for

major VOC sources in the Richmond moderate ozone nonattainment area,

and the Virginia portion of the Metropolitan Washington, D.C.

nonattainment area, effective January 1, 1993.

(ii) Additional material.

(A) Remainder of State submittal pertaining to Sec. 120-04-0407.

* * * * *

[FR Doc. 97-6080 Filed 3-11-97; 8:45 am]

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