Approval and Promulgation of Air Quality Implementation Plans; Virginia; Approval of Source Specific VOC RACT for Tuscarora Incorporated

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[VA 061-5039; FRL-6218-5]

Approval and Promulgation of Air Quality Implementation Plans;

Virginia; Approval of Source Specific VOC RACT for Tuscarora

Incorporated

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision

submitted by the Commonwealth of Virginia. This revision requires

Tuscarora Incorporated, a major source of volatile organic compounds

(VOCs), to implement reasonably available control technology (RACT).

The intended effect of this action is to grant approval of a source-

specific Consent Agreement submitted by the Commonwealth of Virginia to

impose RACT requirements in accordance with the Clean Air Act.

DATES: This final rule is effective on March 23, 1999, without further

notice, unless EPA receives adverse comments by February 22, 1999. If

adverse comments are received, EPA will publish a timely withdrawal of

the direct final rule in the Federal Register and inform the public

that the rule will not take effect.

ADDRESSES: Written comments should be addressed to David Arnold, Chief,

Ozone and Mobile Sources Branch, Mailcode 3AP21, U.S. Environmental

Protection Agency, Region III, 1650 Arch Street, Philadelphia,

Pennsylvania 19103. 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; and Virginia Department

of Environmental Quality, P.O. Box 10009, 629 East Main Street,

Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Janice M. Lewis, (215) 814-2185, at

the EPA Region III address above, or via e-mail at

[email protected]. While information may be requested via e-mail,

any comments must be submitted in writing to the EPA Region III address

above.

SUPPLEMENTARY INFORMATION:

I. Background

On July 12, 1996, the Commonwealth of Virginia, Department of

Environmental Quality (VADEQ) submitted a source-specific VOC RACT

determination for Tuscarora Incorporated located in Loudoun County.

Loudoun County is in the Northern Virginia portion of the Metropolitan

Washington D.C. serious ozone nonattainment area. Within this

nonattainment area, all sources of VOC with the potential to emit 50TPY

or more are considered major sources and subject to RACT. Because

Tuscarora Incorporated is not subject to RACT under Virginia's

category-specific regulations developed for industrial categories

covered by Control Technique Guidelines (CTGs), it is termed a non-CTG

source. Therefore, VADEQ has determined and imposed RACT via a Consent

Agreement (Registration No. 71814) to meet the requirements of section

182 of the Clean Air Act.

II. Summary of the SIP Revision

Tuscarora Incorporated, a manufacturer of custom molded, foam

plastic packing, structural components and material handling products,

had pre-RACT uncontrolled VOC emissions of 105.2 TPY. These emissions

emanate from plant operations using the primary resin expandable

polystyrene (EPS) and from the occasional use of a polystyrene/

polyethylene copolymer known as ARCEL. The VADEQ determined that RACT

for the facility is the use of low and reduced VOC content EPS and

ARCEL beads. The Consent Agreement (Registration No.71814) requires,

among other things, that the EPS monthly weighted average percentage of

VOC shall not exceed 4.5% and that the ARCEL monthly weighted average

percentage of VOC shall not exceed 8.5%. The use of low and reduced VOC

concentrations in EPS and ARCEL beads reduces potential VOC emissions

by 31%. The Consent Agreement requires that Tuscarora Incorporated keep

a daily detailed material log which documents the percentage of VOC

contained in the EPS and ARCEL material processed at the facility. The

log must provide sufficient information to determine compliance with

the conditions of the Consent Agreement. The log must be available on

site and must be current for the most recent five years. Additional

details of the RACT determination may be found in VADEQ's submittal and

the technical support document (TSD) prepared to support this

rulemaking. Copies of these materials are available, upon request, from

the EPA Regional office listed in the ADDRESSES section of this

document.

EPA is approving Consent Agreement No. 71814 issued by VADEQ to

Tuscarora Incorporated to impose RACT for VOCS as a revision to the

Virginia SIP.

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

[[Page 3426]]

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 does not extend to documents or information that are: (1)

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 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. * * * '' 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.'' Thus, EPA has determined that Virginia's Privilege and

Immunity statutes will not preclude the Commonwealth from enforcing its

program consistent with the federal requirements.

EPA is approving this SIP revision without prior proposal because

the Agency views this as a noncontroversial amendment and anticipates

no adverse comments. However, in the proposed rules section of this

Federal Register publication, EPA is publishing a separated document

that will serve as the proposal to approve the SIP revision should

adverse or critical comments be filed. This SIP revision will be

effective March 23, 1999, without further notice unless the Agency

receives adverse comments by February 22, 1999.

If EPA receives such comments, then EPA will publish a document

withdrawing the final action and informing the public that the action

will not take effect. All public comments received will then be

addressed in a subsequent final action based on the proposed rule. EPA

will not institute a second comment period on the rule. Parties

interested in commenting on this action should do so at this time. If

no such comments are received, the public is advised that this SIP

revision will be effective on March 23, 1999, and no further action

will be taken on the proposed rule.

III. Final Action

EPA is approving the Consent Agreement, Registration Number 71814,

submitted by the Commonwealth of Virginia on July 12, 1996 as a SIP

revision.

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.

[[Page 3427]]

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 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).

F. 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 regulation that includes a Federal mandate that may result in

estimated annual 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 proposed 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 federal

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 the Comptroller General of the United

States. Section 804, however, exempts from section 801 the following

types of rules: rules of particular applicability; rules relating to

agency management or personnel; and rules of agency organization,

procedure, or practice that do not substantially affect the rights or

obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required

to submit a rule report regarding today's action under section 801

because this is a rule of particular applicability, establishing

requirements only for Tuscarora Incorporated in Loudoun County,

Virginia.

H. Petitions for Judicial Review

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

judicial review of this action to approve the VOC RACT determination

submitted by VADEQ for Tuscarora Incorporated must be filed in the

United States Court of Appeals for the appropriate circuit by March 23,

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, Hydrocarbons,

Incorporation by reference, Ozone.

Dated: December 28, 1998.

Thomas Voltaggio,

Acting 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 paragraph (c)(128) to read

as follows:

Sec. 52.2420 Identification of plan.

* * * * *

(c) * * *

(128) Revision to the State Implementation Plan submitted on July

12, 1996 by the Virginia Department of Environmental Quality regarding

VOC RACT requirements for one VOC source.

(i) Incorporation by reference.

(A) The letter dated July 12, 1996 from the Virginia Department of

Environmental Quality submitting one source-specific VOC RACT

determination in the form of a Consent Agreement for Tuscarora

Incorporated.

(B) Consent Agreement for Tuscarora Incorporated--Sterling, Loudoun

County, VA, Consent Agreement, Registration Number 71814, effective on

June 5, 1996.

(ii) Additional Material: Remainder of the State submittal

pertaining to Tuscarora Incorporated.

[FR Doc. 99-1263 Filed 1-21-99; 8:45 am]

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