Approval and Promulgation of Air Quality Implementation Plans; Virginia; Reasonably Available Control Technology for Major Sources of Nitrogen Oxides

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[VA024-5037; FRL-6223-6]

Approval and Promulgation of Air Quality Implementation Plans;

Virginia; Reasonably Available Control Technology for Major Sources of

Nitrogen Oxides

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing conditional limited approval of a State

Implementation Plan (SIP) revision submitted by the Commonwealth of

Virginia. This revision establishes and requires the implementation of

reasonably available control technology (RACT) on major sources of

nitrogen oxides (NOX) in the northern Virginia portion of

the Metropolitan Washington D.C. serious ozone nonattainment area. The

intended effect of this action is to propose conditional limited

approval of Virginia regulations to impose RACT on major sources of

NOX.

DATES: Comments must be received on or before February 25, 1999.

ADDRESSES: Comments may be mailed to David L. 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 and

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the Virginia Department of Environmental Quality, 629 East Main Street,

Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Kristeen Gaffney, (215) 814-2092. Or

by 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 November 9, 1992, the Commonwealth of Virginia submitted a

revision to its State Implementation Plan (SIP). This SIP revision

consisted of regulations to establish reasonably available control

technology (RACT) requirements on major sources of nitrogen oxides

(NOX) in the northern Virginia portion of the Metropolitan

Washington D.C. serious ozone nonattainment area. The Commonwealth

submitted additional materials to supplement the November 9, 1992 SIP

revision on December 11, 1992 and again on April 11, 1998. This action

is being taken under section 110 of the Clean Air Act (the Act).

Section 182(f) of the Act requires states to submit rules to

implement RACT on major sources of NOX in ozone

nonattainment areas designated as moderate or above and throughout the

Ozone Transport Region. The definition of major source is determined by

the classification of the nonattainment area and whether or not it is

located in the Ozone Transport Region. A portion of Northern Virginia

is part of the Metropolitan Washington D.C. serious ozone nonattainment

area and that same portion of Virginia is in the Ozone Transport

Region. Therefore, sources in the Northern Virginia portion of the

Washington D.C. nonattainment area which emit or have the potential to

emit 50 tons or more of NOX per year are considered major

and are subject to the NOX RACT requirements of the Act.

On November 9, 1992, the Virginia Department of Environmental

Quality (VADEQ) submitted a revision to its SIP consisting of adopted

regulations to impose NOX RACT on major sources in the

northern Virginia nonattainment area. The VADEQ supplemented its

November 1992 submittal on December 11, 1992. On August 11, 1998, the

VADEQ made a submittal to EPA withdrawing certain provisions of the

November 9, 1992 submittal, and forwarding revisions that corrected

typographical errors and recodified and renumbered one of the relevant

regulations, Appendix T [now 9 VAC 5-40-311].

II. Description of the SIP Revision Submittal

The November 9, 1992 submittal consisted of revisions to Virginia

Regulation (VR) 120-01, Part IV, Emission Standards for General Process

Operations (Rule 4-4) and to Appendix T, entitled ``Reasonably

Available Control Technology Guidelines for Stationary Sources of

Nitrogen Oxides''. Rule 4-4 was amended to insert a new section, 120-

04-0408, entitled ``Standard for nitrogen oxides''. To accommodate the

insertion of section 120-04-0408, the revision also renumbered the

previously existing sections 120-04-0408 through 120-04-0418,

inclusive, as sections 120-04-0409 through 120-04-0419, inclusive. On

April 11, 1998, the VADEQ submitted a revised version of Appendix T to

correct a technical error in the Virginia Register version of the final

rule dated November 30, 1992. This error was corrected by Virginia in

the Virginia Register on June 23, 1997. On April 11, 1998, the

Commonwealth submitted the corrected version of Appendix T. In addition

to the typographical correction, the Commonwealth also recodified

Appendix T and renumbered it as 9 VAC 5-40-311.

Section 120-04-0408, entitled ``Standard for nitrogen oxides'' has

five subsections:

Subsection (A) prohibits owners or other persons of affected

facilities from permitting or causing NOX emissions in

excess of that resulting from using RACT.

Subsection (B) requires that compliance with RACT under subsection

(A) be that defined in Appendix T [now 9 VAC 5-40-311] unless the

source owner demonstrates otherwise to the satisfaction of the Virginia

Air Pollution Control Board (the Board).

Subsection (C) defines which facilities are subject to the rule.

NOX RACT applies to all stationary sources located in the

Northern Virginia Emissions Control Area that have a theoretical

potential to emit of 50 tons per year or greater of NOX.

Subsection (C) also provides guidance on the calculation of

``theoretical potential to emit'' for determining applicability of 120-

04-0408.

Subsection (D) requires owners of facilities subject to subsection

(A) to notify the Board of applicability status, to commit to making a

determination of what constitutes RACT and to submit a schedule to the

Board for making this determination. Compliance with RACT is to be

achieved as expeditiously as practicable but no later than May 31,

1995.

Subsection (E) requires owners of facilities subject to subsection

(B) to notify the Board of applicability status, to commit to accepting

an applicable standard in Appendix T or to submit a demonstration of

RACT, and to provide a schedule for submitting that demonstration no

later than January 1, 1994. Compliance with RACT is to be achieved as

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

Appendix T [now 9 VAC 5-40-311] consists of four sections:

Section A--General states that RACT required by section 120-04-0408

is as defined in this section for certain source types unless approved

otherwise by the Board.

Section B--Definitions defines various terms. The following terms

are defined: ``capacity factor'', ``combustion modification'',

``combustion unit'', ``fossil fuel'', ``fuel burning equipment'',

``fuel burning equipment installation'', ``gas turbine'', ``heat

input'', ``incinerator'', ``internal combustion engine'', ``process

heater'', ``rated capacity'', ``refuse derived fuel'', ``steam

generating unit'', and ``total capacity''.

Section C--Definition of reasonably available control technology

defines emission limits as RACT for steam generating units, process

heaters and gas turbines and requires RACT to be demonstrated on a

daily basis. Section C of VAC 5-40-311 also exempts certain source

categories and/or applicability thresholds for source categories from

the requirement to demonstrate RACT under subsection 120-04-0408 (B).

On August 11, 1998, VADEQ withdrew subdivisions C.3.a. and C.3.c. of

section C. of 9 VAC 5-40-311 (formerly Appendix T) from its SIP

revision submittal pending before EPA. Therefore, the provisions of

subdivisions C.3.a. and C.3.c. of 9 VAC 5-40-311 are not being

considered for approval as part of the Virginia SIP.

Section D--Emission Allocation System--On August 11, 1998, VADEQ

withdrew section D of 9 VAC 5-40-311 (formerly section IV of Appendix

T) from its SIP revision submittal pending before EPA. Therefore, the

provisions of section D of 9 VAC 5-40-311 are not being considered for

approval as part of the Virginia SIP.

III. EPA's Evaluation of the SIP Revision

A. Applicability

The provisions of section 120-04-0408, Standard for Nitrogen

Oxides, apply to all sources in the Northern Virginia Emissions Control

Area having

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a theoretical potential to emit 50 or more tons per year of

NOX. The Northern Virginia Emissions Control Area consists

of the counties of Arlington, Fairfax, Loudoun, Prince William and

Stafford, and the cities of Alexandria, Fairfax, Falls Church, Manassas

and Manassas Park. The geographical coverage of the Northern Virginia

Emissions Control Area is the same as the Virginia portion of the

designated Metropolitan Washington D.C. ozone nonattainment area.

Virginia's section 120-04-0408 covers the same area as that required by

section 182(f) of the Act for the Virginia portion of the Washington

D.C. ozone nonattainment area, and meets the requirements for approval.

B. Presumptive RACT Emission Limits for Steam Generating Units/Process

Heaters and Gas Turbines

Section C of 9 VAC 5-40-311 (formerly Appendix T) establishes

presumptive RACT emission limits for steam generating units, process

heaters and gas turbines. Subdivision C.1.a. sets limits for steam

generating units and process heaters with a rated capacity of 100 or

greater million British Thermal Units per hour (MMBTU/hr) as indicated

in Table 1, below.

Table 1

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Fuel type Face* and tangential firing Cyclone firing Stokers

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Coal--wet bottom.............. 1.0 lbs/MMBTU............... .55 lbs/MMBTU.............. N/A.

Coal--dry bottom.............. .38 lbs/MMBTU............... N/A........................ .4 lbs/MMBTU.

Oil or Gas or both............ .25 lbs/MMBTU............... .43 lbs/MMBTU.............. N/A

Gas only...................... .20 lbs/MMBTU............... N/A........................ N/A

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*Includes wall, opposed and vertical firing methods.

Subdivision C.1.b. of 9 VAC 5-40-311 (formerly Appendix T) sets

presumptive RACT limits for gas turbines. All limits for gas turbines

are expressed in terms of dry volume corrected to 15 percent oxygen.

RACT for gas-fuel, simple or combined cycle turbines, is 42 parts per

million dry volume (ppmvd) of NOX. RACT for oil-fueled

simple or combined cycle units, is 65 ppmvd NOX when the

fuel bound nitrogen content is less than 0.015 percent and a limit of

77 ppmvd when the fuel bound nitrogen content is greater than or equal

to 0.015 percent.

Subdivision C.2. of 9 VAC 5-40-311 requires that compliance with

the limits set in C.1.a. and b. shall be met on a daily basis. EPA is

proposing to approve the provisions of C.1.a. and b. and C.2. of 9 VAC

5-40-311 (formerly Appendix T) as RACT for utility boilers, process

heaters and gas turbines.

C. Compliance

Subsections 120-04-0408 (D) and (E) require compliance with RACT as

expeditiously as practicable but not later than May 31, 1995. This

meets the corresponding requirement under section 182(f) of the Act and

is approvable. The following sections of Virginia's general provisions

are cross-referenced and apply to all sources subject to NOX

RACT: 120-04-0413 Compliance; 120-04-0414 Test methods and procedures;

120-04-0415 Monitoring; 120-04-016 Notification, records and reporting;

120-04-0417 Registration; 120-04-0418 Facility maintenance or

malfunction; and 120-04-0419 Permits. These provisions are all SIP

approved, and, therefore, section 120-04-0408 satisfies appropriate

requirements for record-keeping, monitoring and compliance.

D. Exempted Sources

Provisions found at subdivision C.3.b. of 9 VAC 5-40-311 (formerly

Appendix T) exempt any steam generating unit, gas turbine, or process

heater with an annual capacity factor of less than five percent from

the requirement to demonstrate RACT.

However, within three months following any calendar year in which

the capacity factor exceeds five percent, a source becomes subject to

subsection 120-04-0408 (A) or (B)--which require compliance with a RACT

limit set presumptively or on a case-by-case basis--and the owner must

make the notification and submittal required under subsection 120-04-

0408 (D) or (E)--which require notification of applicability status. In

this case, the compliance date is two years after the Board approves

the schedule submitted by the source owner. Provisions of subdivision

C.3.b. also provide that time periods in which a stand-by unit is used

to provide replacement services for a unit being altered to comply with

RACT are not to be included in the determination of the annual capacity

factor for the stand-by unit.

Provisions found at subdivision C.3.d. of 9 VAC 5-40-311 (formerly

Appendix T) exempt any stationary internal combustion engine with a

rated capacity of less than 450 horsepower output from the requirement

to demonstrate RACT.

Provisions found at subdivision C.3.e. of 9 VAC 5-40-311 (formerly

Appendix T) exempt any incinerator with a maximum capacity of less than

50 tons of waste per day from the requirement to demonstrate RACT.

Provisions found at subdivision C.3.f. of 9 VAC 5-40-511 (formerly

Appendix T) exempt any incinerator or thermal or catalytic oxidizer

used exclusively as air pollution control equipment from the

requirement to demonstrate RACT.

Provisions found at subdivision C.3.g. of 9 VAC 5-40-311 exempt any

generator used solely to supply emergency power to buildings during

periods when normal power supplies are interrupted and during periods

of scheduled maintenance from the requirement to demonstrate RACT.

In a memorandum from G.T. Helms of the Office of Air Quality

Planning & Standards (OAQPS) to the Regional Air Branch Chiefs, dated

January 1, 1995, entitled ``De Minimis Values for NOX

RACT'', EPA provides guidance and technical data that may be used to

evaluate de minimis levels for various categories of NOX

sources. Traditionally, regulatory agencies have typically included

exemptions for very small emission units in volatile organic compound

(VOC) RACT rules. The reason for the exemption is that control

requirements at very small units are generally not reasonable,

considering technological and economic feasibility. In the process of

adopting rules to meet the NOX RACT requirements of the

Clean Air Act, many states have included exemptions in their state

rules for very small or infrequently used NOX emission

sources similar to the VOC rule exemptions. Total annual emissions from

certain units at a facility, such as small incinerators, emergency

generators and peaking units, may be so

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small that it is clear that no controls are reasonably available for

such units. Based on the description of de minimis level of

NOX emissions from small units, EPA agrees that it is

reasonable to exclude the source categories as provided in subdivisions

C.3.b, C.3.d, C.3.e, C.3.f, and C.3.g of 9 VAC 5-40-311 (formerly

Appendix T) of Virginia's regulations from RACT requirements.

E. Generic Provisions

Rule 120-04-0408 requires certain sources to comply with the

applicable emission limits established in Appendix T (now known as 9

VAC 5-40-311); or to apply to the Board for an alternative emission

limit through a source-specific RACT determination process. The

emission limits of section C of 9 VAC 5-40-311 do not cover all

categories of NOX sources. Section C specifically enacts

emission limits for boilers/steam generating units, process heaters and

gas turbines. Other source categories, such as incinerators,

reciprocating internal combustion engines, cement manufacturing and

iron/steel manufacturing are not covered in 9 VAC 5-40-311.

These sources are not subject to specific, ``up-front'' (i.e.

immediately ascertainable) emission limitations. Instead, the

regulations establish a process for the Commonwealth to review and

approve individual RACT emission limitations proposed by the sources,

which are then to be submitted to EPA as SIP revisions. Additionally,

subsection 120-04-0408(B) of Virginia's rule allows sources subject to

the presumptive limits in Appendix T (now known as 9 VAC 5-40-311) to

propose alternative RACT on a case-by-case basis provided they submit

the proposal by January 1, 1994. The proposal must include technical

and economic support documentation for the proposed RACT and include a

schedule for compliance as expeditiously as practical but no later than

May 31, 1995.

The Act requires states to implement RACT on all major stationary

sources. Process-oriented generic regulations, such as those submitted

by Virginia, which do not include specific and ascertainable emission

limitations for all major sources, do not by themselves provide

standards for EPA to approve or disapprove as satisfying the definition

of RACT. Therefore, the Act's RACT requirements are satisfied only

after the specific limitations imposed by the Commonwealth on its major

sources have been submitted to EPA as SIP revisions and approved by EPA

as RACT for the subject sources.

In a November 7, 1996 policy memo from Sally Shaver, Director, Air

Quality Strategies and Standards Division of OAQPS, EPA issued guidance

for approving state generic RACT regulations, like Virginia's, provided

certain criteria are met. This guidance does not exempt any major

source from RACT requirements but instead provides for a de minimis

deferral of RACT only for the purposes of approving the state's generic

RACT regulation. The de minimis deferral level is determined by using

the 1990 NOX emissions, excluding the utility boiler

NOX emissions. The remaining 1990 non-utility boiler

emissions are then compared with the amount of non-utility

NOX emissions that have yet to have RACT approved into the

SIP. Generally, EPA expects that all utility boiler RACTs will be

approved prior to application of this de minimis deferral policy and

possible conversion of the generic RACT conditional approval to full

approval. EPA does not expect to defer more than 5% of the emissions

calculated in this manner in order to fully approve Virginia's generic

NOX RACT regulation. In accordance with the November 1996

policy, EPA is requiring that all utility boiler RACT determinations be

approved by EPA and all but a de minimis level of non-utility boiler

RACT determinations be approved into the SIP before the limited

approval can be converted to full approval. Full approval of a generic

RACT regulation under this policy does not change the Commonwealth's

statutory obligation to implement RACT for all major sources. No major

NOX source is being exempted from RACT requirements through

this policy or today's rulemaking.

Because EPA has not received SIP revisions of source-specific RACT

determinations for all major sources of NOX subject to RACT

under the Clean Air Act, EPA can at best, according to the November 7,

1996 policy memorandum, propose conditional limited approval of the

NOX RACT generic rule. In support of this proposed

rulemaking, the Commonwealth committed in a letter dated April 11, 1998

to submit, as SIP revisions, RACT determinations for all sources

subject to NOX RACT within 12 months of EPA's final

conditional approval of the generic rule.

F. Virginia's Audit Privilege Legislation

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 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

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program consistent with the federal requirements.

Terms of and Rationale for Conditional Approval

EPA's is proposing conditional approval of Virginia's

NOX RACT regulations, based on the Commonwealth's commitment

to submit for approval into the SIP, the case-by-case RACT proposals

for all sources subject to RACT requirements currently known to the

Virginia Department of Environmental Quality (VADEQ). The Commonwealth

submitted this commitment in a letter to EPA, dated August 11, 1998.

The case-by-case RACT proposals must be submitted by a date certain

that is no later than 12 months after the effective date of EPA's final

conditional approval.

To fulfill the conditions of this approval, the Commonwealth must,

by no later than 12 months after the effective date of EPA's final

conditional approval of the generic NOX RACT SIP, (1)

certify that is has submitted case-by-case RACT SIPs for all sources

subject to the RACT requirements currently known to the Department; or

(2) demonstrate that the emissions from any remaining subject sources

represent a de minimis level of emissions (as described above). Once

EPA has determined that the Commonwealth has satisified this condition,

EPA shall remove the conditional nature of its approval and the

Virginia NOX RACT regulations will, at that time, retain

limited approval status. Should the Commonwealth fail to meet the

conditions specified above, the final conditional limited approval of

the NOX RACT regulations SIP revision shall convert to a

disapproval.

EPA is also proposing limited approval of Virginia's NOX

RACT regulations, VA Rule 120-08-0408, and the provisions of 9 VAC 5-

40-311 (formerly Appendix T) as requested by the VADEQ. The current

Virginia SIP does not contain a general requirement that all major

sources of NOX must implement RACT. While EPA does not

believe that the Virginia generic NOX RACT regulation

satisfies the Act's RACT requirements as discussed previously in this

notice, EPA is also proposing limited approval of the Virginia

NOX RACT regulations on the basis that they strengthen the

SIP. The purpose of the proposed approval of the presumptive limits as

RACT for these categories of sources of NOX is for the

limited purpose of strengthening the Virginia SIP by adding RACT

standards for sources of NOX in the Northern Virginia

Emissions Control Area where none existed before.

Section 110(k)(4) of the Act allows EPA to propose conditional

approval of the Virginia RACT regulations based on a commitment by the

Commonwealth to adopt specific enforceable measures by a date certain

but no later than 1 year after the effective date of EPA's final

conditional approval. On August 11, 1998, Virginia submitted a letter

to EPA committing to submit all case-by-case RACT determinations to EPA

as SIP revisions within 12 months of final conditional, limited

rulemaking, including those for sources covered by new source review

permits, subject to the presumptive RACT limits, and previously

exempted from the state regulations. Once EPA determines that the

Commonwealth has satisfied the conditions in this notice, EPA shall

remove only the conditional nature of its approval and the

NOX RACT regulations will, at that time, retain limited

approval status. Once EPA has approved all of the case-by-case RACT

proposals as SIP revisions, the limited approval will convert to full

approval. Therefore, even after the conditional status of EPA's

approval of Virginia's regulations is removed, VADEQ must still

continue to submit, and have EPA approve into the Virginia SIP, RACT

requirements for the remaining de minimis amount of emissions. Removal

of the conditional status to limited approval status in no way changes

VADEQ's statutory obligation to implement RACT for all major sources.

Although EPA fully expects that Virginia will meet the conditions set

forth in this notice, should Virginia fail to meet the conditions in

this notice, EPA is proposing that the final conditional limited

approval shall convert to a disapproval.

EPA is soliciting public comments on the issues discussed in this

document. 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 document. A more detailed description of the

state submittal and EPA's evaluation are included in the Technical

Support Document (TSD) prepared in support of this rulemaking action. A

copy of the TSD is available, upon request, from the EPA Regional

Office listed in the ADDRESSES section of this document.

IV. Proposed Action

EPA is proposing conditional limited approval of the Commonwealth's

NOX RACT SIP submittal of November 9, 1992, as modified on

December 11, 1992 and April 11, 1998. EPA is proposing conditional

limited approval of this SIP revision based on the commitment made by

Virginia to submit all case-by-case RACT proposals for sources it is

currently aware of as being subject to the major source NOX

RACT requirement, and because adding RACT standards for major sources

of NOX in the Northern Virginia Emissions Control Area where

none existed before strengthens the SIP. On August 11, 1998, Virginia

submitted a letter to EPA committing to submit all case-by-case RACT

determinations to EPA as SIP revisions within 12 months of final

conditional, limited rulemaking.

V. Administrative Requirements

A. Executive Orders 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. 12875 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

Executive Order 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 Executive Order 12866,

and (2) the environmental

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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 proposed rule is not subject to Executive Order 13045 because

it is not an economically significant regulatory action as defined by

Executive Order 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, E.O. 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.

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 proposed rule will not have a significant impact on

a substantial number of small entities because SIP approvals under

sections 110 and 301, 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).

If the conditional approval is converted to a disapproval under

section 110(k), based on the State's failure to meet the commitment, it

will not affect any existing state requirements applicable to small

entities. Federal disapproval of the state submittal does not affect

its state-enforceability. Moreover, EPA's disapproval of the submittal

does not impose a new Federal requirement. Therefore, I certify that

this proposed disapproval action does not have a significant impact on

a substantial number of small entities because it does not remove

existing requirements nor does it substitute a new federal requirement.

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 rule that includes a Federal mandate that may result in estimated

annual 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 proposed approval action of Virginia's

NOX RACT regulations do 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 requirements. Accordingly, no

additional costs to State, local, or tribal governments, or to the

private sector, result from this action.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Nitrogen dioxide,

Ozone.

Authority: 42 U.S.C. 7401 et seq.

Dated: January 7, 1999.

W. Michael McCabe,

Regional Administrator, Region III.

[FR Doc. 99-1648 Filed 1-25-99; 8:45 am]

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