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

[VA024-5042; FRL-6318-5]

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: Final rule.

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SUMMARY: EPA is approving 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 Virginia portion of the Metropolitan Washington D.C. serious

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

grant conditional limited approval of Virginia's regulations to impose

RACT on major sources of NOX.

EFFECTIVE DATE: This final rule is effective on May 28, 1999.

ADDRESSES: 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; 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].

SUPPLEMENTARY INFORMATION: On January 26, 1999 (64 FR 3891), EPA

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

Virginia. The NPR proposed conditional limited approval of Virginia's

NOX RACT regulations for the Virginia portion of the

Metropolitan Washington D.C. serious ozone nonattainment area. No

comments were received on the proposal.

I. Background

The Clean Air 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 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 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

nonattainment area, known in state regulations as the Northern Virginia

Emissions Control Area. The VADEQ supplemented its November 1992

submittal on December 11, 1992. On August 11, 1998, the VADEQ made

another 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).

The November 9, 1992 submittal consisted of revisions to Virginia

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

Operations (Rule 4-4) and 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.

Virginia's 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 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. Therefore, not all potential major

NOX sources are subject to specific, presumptive ``up-

front'' (i.e. immediately ascertainable) emission limits. 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 Clean Air 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 limits 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 limits 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 the Office of Air Quality

Planning and Standards, 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

[[Page 22790]]

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 percent 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 from the Commonwealth

for all source-specific RACT determinations, EPA can at best, according

to the November 7, 1996 policy memorandum, grant conditional limited

approval of Virginia's NOX RACT generic rule. In a letter to

EPA dated April 11, 1998, the VADEQ committed to submit, as SIP

revisions, RACT determinations for all sources either not subject to

the presumptive emission limits in Appendix T or electing alternative

source-specific RACT requirements. The VADEQ committed to submit these

RACT determinations within 12 months of EPA's final conditional limited

approval of its generic rule.

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 Law does not

extend to documents or information (1) that are 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, Va. Code Sec. 10.1-1198, 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. . . .'' The opinion

concludes that ``[r]egarding Sec. 10.1-1198, therefore, documents or

other information needed for civil or criminal enforcement under one of

these programs could not be privileged because such documents and

information are essential to pursuing enforcement in a manner required

by federal law to maintain program delegation, authorization or

approval.''

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.''

Therefore, EPA has determined that Virginia's Privilege and

Immunity statutes will not preclude the Commonwealth from enforcing its

program consistent with the federal requirements. In any event, because

EPA has also determined that a state audit privilege and immunity law

can affect only state enforcement and cannot have any impact on federal

enforcement authorities, EPA may at any time invoke its authority under

the Clean Air Act, including, for example, sections 113, 167, 205, 211

or 213, to enforce the requirements or prohibitions of the state plan,

independently of any state enforcement effort. In addition, citizen

enforcement under section 304 of the Clean Air Act is likewise

unaffected by this, or any, state audit privilege or immunity law.

II. Terms of and Rationale for Conditional Limited Approval

EPA is conditionally approving Virginia's NOX RACT

regulations based upon VADEQ's April 11, 1998 commitment to submit, as

SIP revisions, RACT determinations for all currently known major

sources subject to source-specific NOX RACT requirements. In

accordance with section 110(k)(4) the Act (and consistent with the

VADEQ's commitment letter of April 11, 1998), these RACT determinations

must be submitted by May 30, 2000.

EPA is also granting limited approval of Virginia's NOX

RACT regulations, rule 120-08-0408, and the provisions of 9 VAC 5-40-

311 (formerly Appendix T) as submitted by the VADEQ. The current

Virginia SIP does not contain a general requirement that all major

sources of NOX in the nonattainment area must implement

RACT. While EPA does not believe that the Virginia NOX RACT

regulations fully satisfy the requirements of the Act because of the

generic provisions allowing for source-specific determinations, EPA is

limitedly approving portions of Virginia's NOX RACT

regulations on the basis that they strengthen the SIP. The purpose of

the limited approval of the requirement to implement RACT and the

presumptive emission limits on certain categories of sources is because

they strengthen the Virginia SIP by adding RACT standards for sources

of NOX in the Virginia portion of the Metropolitan

Washington D.C. ozone nonattainment area where none existed before.

Other specific requirements of Virginia's NOX RACT

requirements and the rationale for EPA's action are explained in the

Notice of Proposed Rulemaking and will not be restated here. No public

comments were

[[Page 22791]]

received on the Notice of Proposed Rulemaking.

III. Final Action

EPA is granting conditional limited approval of the Commonwealth's

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

December 11, 1992 and April 11, 1998. EPA's conditional approval is

based upon the April 11, 1998 commitment made by VADEQ to submit,

within 12 months of EPA's final rulemaking of this NOX RACT

SIP, source-specific RACT determinations for all currently known major

sources subject to source-specific NOX RACT requirements.

EPA is also granting limited approval because adding RACT standards for

major sources of NOX in the Northern Virginia Emissions

Control Area where none existed before strengthens the SIP.

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

by May 30, 2000: (1) Certify that it has submitted, as SIP revisions,

RACT proposals for all sources subject to source-specific

NOX RACT requirements; 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 satisfied 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.

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.

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 SIP approvals and

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).

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 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

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(``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 approval action promulgated 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

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 to the Comptroller General of the

United States. EPA will submit 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 United States prior

to publication of the rule in the Federal Register. This rule is not a

``major rule'' as defined by 5 U.S.C. 804(2).

H. Petitions for Judicial Review

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

judicial review of this action to conditionally limitedly approve

Virginia's NOX RACT regulations must be filed in the United

States Court of Appeals for the appropriate circuit by June 28, 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, Incorporation by

reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping

requirements.

Dated: March 24, 1999.

W. Michael McCabe,

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 paragraphs (c)(131) and

(c)(132) to read as follows:

Sec. 52.2420 Identification of plan.

* * * * *

(c) * * *

(131) Limited approval of revisions to the Virginia State

Implementation Plan submitted on November 9, 1992 by the Virginia

Department of Environmental Quality:

(i) Incorporation by reference.

(A) Letters of November 9, 1992 and December 11, 1992 from the

Virginia Department of Environmental Quality transmitting Virginia rule

120-04-0408 to implement major source NOX RACT requirements

in the Northern Virginia Emissions Control Area.

(B) Virginia regulation 120-04-0408, ``Standard for Nitrogen

Oxides'', pertaining to major source NOX RACT requirements,

effective on January 1, 1993.

(C) Renumbering of previously SIP approved sections in rule 120-04:

-0408 and -0409 to 120-04-0409 and -0410, respectively and previously

SIP approved sections -0412 through -0418 to -0413 through -0419,

respectively, effective January 1, 1993.

(ii) Additional Material--Remainder of November 9, 1992 submittal

and supplemental information submitted by the Virginia Department of

Environmental Quality on December 11, 1992 and August 11, 1998

pertaining to 120-04-0408.

(132) Limited approval of revisions to the Virginia State

Implementation Plan submitted on November 9, 1992 and August 11, 1998

by the Virginia Department of Environmental Quality:

(i) Incorporation by reference.

(A) Letters of November 9, 1992, December 11, 1992 and August 11,

1998 from the Virginia Department of Environmental Quality transmitting

Virginia regulation 9 VAC 5-40-311 (formerly Appendix T) establishing

RACT requirements on major sources in the Northern Virginia Emissions

Control Area.

(B) Addition of Virginia regulation 9 VAC 5-40-311, sections A, B,

C.1, C.2, C.3.b, and C.3.d-g and Errata pages, establishing RACT

requirements for major sources of NOX in the Northern

Virginia Emissions Control Area, effective on July 1, 1997.

(ii) Additional Material--Remainder of November 9, 1992 submittal

and supplemental information submitted by the Virginia Department of

Environmental Quality on December 11, 1992 and August 11, 1998

pertaining to VAC 5-40-311.

3. Section 52.2450 is amended by adding paragraph (f) to read as

follows:

Sec. 52.2450 Conditional approval.

* * * * *

(f) Revisions to the Virginia State Implementation Plan, pertaining

to NOX RACT requirements on major sources in the Northern

Virginia Emissions Control Area, Virginia regulations 120-04-0408 and 9

VAC 5-40-311, submitted on November 9, 1992, December 11, 1992, and

August 11, 1998 by the Virginia Department of Environmental Quality are

conditionally approved. Virginia must meet the following conditions by

no later than May 30, 2000, in accordance with criteria defined in the

EPA Memorandum dated November 7, 1996 from the Director of the Air

Quality Strategies and Standards Division of the Office of Air Quality

Planning and Standards, entitled ``Approval Options for Generic RACT

Rules Submitted to Meet the Non-CTG VOC RACT Requirement and Certain

NOX RACT Requirements.'' This memorandum is available at the

office of the U.S. Environmental Protection Agency, Region III, 1650

Arch Street, Philadelphia, PA 19103. These conditions are:

(1) The VADEQ must certify, in writing, that it has submitted, as

SIP revisions, RACT determinations for all sources subject to source-

specific NOX RACT requirements; or

(2) The VADEQ must demonstrate that the emissions from any

remaining subject sources represent a de minimis level of emissions.

[FR Doc. 99-9603 Filed 4-27-99; 8:45 am]

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