[Federal Register: December 13, 2004 (Volume 69, Number 238)]
[Rules and Regulations]
[Page 72115-72117]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13de04-9]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[VA155-5081; FRL-7847-4]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia NOX RACT Determinations for Two Individual Sources
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving a State Implementation Plan (SIP) revisions
submitted by the Commonwealth of Virginia (Virginia or the
Commonwealth). The revisions consist of reasonably available control
technology (RACT) determinations for the control of nitrogen oxides
(NOX) from two individual sources located in Fairfax County,
Virginia; namely, the Central Intelligence Agency (CIA), and the
National Reconnaissance Office (NRO). EPA is approving these revisions
to establish and impose RACT requirements in accordance with the Clean
Air Act (CAA).
DATES: Effective Date: This final rule is effective on January 12,
2005.
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; and the Virginia
Department of Environmental Quality, 629 East Main Street, Richmond,
Virginia 23219.
FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182, or by e-
mail at quinto.rose@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On April 19 and 21, 2004, the Virginia Department of Quality (DEQ)
submitted formal SIP revisions to establish RACT for two individual
sources of NOX located in Fairfax County, Virginia. The
Virginia DEQ determined and imposed RACT under the Commonwealth's SIP-
approved generic NOX RACT regulations, 9 VAC 5-40-310 and 9
VAC 5-40-311. Generic RACT regulations are regulations that do not,
themselves, specifically define RACT for a source or source category
but instead establish procedures for imposing case-by-case RACT
determinations. The Commonwealth's SIP-approved generic NOX
RACT regulations consist of the procedures DEQ uses to establish and
impose RACT for subject sources of NOX. Pursuant to the SIP-
approved generic RACT rules, DEQ imposes RACT on each subject source in
an enforceable document, usually a permit or order. The Commonwealth
then submits these permits or orders to EPA for approval as source-
specific SIP revisions. EPA approved Virginia's generic NOX
RACT regulations on April 28, 1999 (64 FR 22792).
On September 9, 2004 (69 FR 54574), EPA published a direct final
rule (DFR) approving as SIP revisions DEQ-issued operating permits
which establish and require RACT for the CIA (Operating Permit
Registration No. 71757), and the NRO (Operating Permit Registration No.
71988). A detailed description of the RACT determinations and EPA's
rationale for approving them were provided in the September 9, 2004 DFR
and will not be restated herein. In accordance with direct final
rulemaking procedures, on September 9, 2004 (69
[[Page 72116]]
FR 54600), EPA also published a companion notice of proposed rulemaking
on these SIP revisions inviting interested parties to comment on the
DFR. On October 12, 2004, EPA received adverse comment on its proposed
approval. On November 4, 2004 (69 FR 64259), due to receipt of the
adverse comment, EPA published a withdrawal of the DFR. A summary of
the comment received and EPA's response to the comment are provided in
section II of this document.
II. Public Comment and EPA Responses
Comment: The commenter, Clean Fuels Technology, Inc., submitted a
spreadsheet with source testing data indicating that Alternative Diesel
Oil Emulsion fuels can produce NOX emission limits lower
than those imposed by the DEQ for the CIA in Operating Permit
Registration No. 71757, and the NRO in Operating Permit Registration
No. 71988. The commenter states that the power levels of the test units
are very similar to the units located at the CIA and NRO facilities in
Fairfax County, Virginia. The commenter suggests in light of the
information in the spreadsheet and the cost savings that could accrue
to the use of fuels less costly than natural gas, that Alternative
Diesel Oil Emulsion fuels be considered an applicable RACT for the
control of NOX emissions at the cited sources.
Response: EPA disagrees with the commenter. The CAA requires that a
state determine and impose RACT for existing major sources of
NOX and VOCs located in ozone nonattainment areas and the
Ozone Transport Region. Those RACT requirements are then to be
submitted to EPA for approval into the SIP. EPA can only take action on
a SIP revision as submitted by a state, and cannot, through its
rulemaking action on a SIP revision, alter the state's submission to
make its requirements more (or less) stringent. Therefore, even if EPA
agreed that the commenter submitted convincing evidence that the SIP
revision submitted by Virginia are not RACT for these facilities, EPA
could not modify the SIP revision as requested by the commenter, but
instead could only disapprove the SIP revision submitted by the
Commonwealth.
With regard to the criteria EPA uses to determine whether to
approve or disapprove RACT SIP revisions submitted by the Virginia DEQ
pursuant to 9 VAC 5-40-310 and 9 VAC 5-40-311 we look to the
requirements of the CAA and relevant EPA guidance.
In approving Virginia's NOX RACT regulations, 9 VAC 5-
40-310 and 9 VAC 5-40-311 (RACT Guidelines for Stationary Sources of
NOX), EPA, thereby, approved the definitions, provisions and
procedures contained within those regulations under which the
Commonwealth would require and impose RACT. In accordance with 9 VAC 5-
40-310, subject facilities are required to submit a RACT plan proposal
to the DEQ. The DEQ then evaluates that RACT plan and determines and
imposes RACT. The DEQ submits each RACT determination to EPA for
approval as a SIP revision. Pursuant to CAA requirements for SIP
revisions, the DEQ conducts a public comment period and public hearing
on its proposed SIP revision prior to submittal of the revisions to
EPA. EPA reviews the case-by-case RACT plan approvals and/or permits
submitted as individual SIP revisions by the Commonwealth to verify and
determine if they are consistent with the RACT requirements of the CAA
and any relevant EPA guidance. Then EPA reviews the technical and
economic analyses conducted by the source and the state. If EPA
believes additional information may further support or would undercut
the RACT analyses submitted by the state, then we may add additional
EPA-generated analyses to the record of our rule to approve or
disapprove the SIP revision. EPA's review of the Commonwealth of
Virginia's submission of its RACT determination for the two individual
sources imposed in DEQ operating permits indicate that the requirements
of its SIP-approved NOX RACT regulations 9 VAC 5-40-310 and
9 VAC 5-40-311 have been met.
While the commenter provides a spreadsheet of testing data from
source testing performed at other units which indicates lower emission
rates at those test units, and asserts that the test units' power
levels are similar to the CIA's and NRO's Virginia-based units, the
commenter did not submit any additional technical information regarding
the comparability of the test units to the CIA's and NRO's units (e.g.,
age, specific design, required operating schedules, comparison of
emissions rates between the test units and the Virginia-based units
when the later are burning natural gas versus diesel oil) to support
its suggestion that Diesel Oil Emulsion fuels be considered RACT for
the specific units located at the CIA's and NRO's Fairfax County,
Virginia facilities. Nor did the commenter provide any information as
to the availability and supply of Diesel Oil Emulsion fuels to these
facilities. The commenter provided no data or information of any kind
to support the comment that cost savings could accrue to the use of
fuels less costly than natural gas. Finally, the commenter did not
submit any justification or analysis to suggest that the RACT limits
imposed by the Commonwealth are inconsistent with the its SIP-approved
generic RACT regulations, the CAA or EPA guidance. Because the
commenter has submitted no new information that would cause us to
reconsider our analysis that accompanied the proposed rule, we continue
to believe that analysis supports our approval of the NOX
RACT determinations imposed by the Virginia DEQ for the CIA's and NRO's
facilities located in Fairfax County, Virginia.
III. Final Action
EPA is approving the Virginia DEQ's NOX RACT
requirements for the two individual sources located in Fairfax County,
Virginia, namely, the Central Intelligence Agency, and the National
Reconnaissance Office. EPA is approving these SIP revisions because DEQ
established and imposed these RACT requirements in accordance with the
criteria set forth in the SIP-approved RACT regulations applicable to
these sources. The DEQ has also imposed record keeping, monitoring, and
testing requirements on the two individual sources sufficient to
determine compliance with the applicable RACT determinations.
IV. Statutory and Executive Order Reviews
A. General Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves State law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by State law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under State law and does
not impose any additional enforceable duty beyond that required by
State law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995
[[Page 72117]]
(Public Law 104-4). This rule also does not have tribal implications
because it will not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes, as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000). This action also
does not have federalism implications because it does not have
substantial direct effects on the States, on the relationship between
the National Government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This
action merely approves a state rule implementing a Federal standard,
and does not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. This rule also is
not subject to Executive Order 13045 ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), because it is not economically significant. In reviewing SIP
submissions, EPA's role is to approve state choices, provided that they
meet the criteria of the Clean Air Act. In this context, in the absence
of a prior existing requirement for the State to use voluntary
consensus standards (VCS), EPA has no authority to disapprove a SIP
submission for failure to use VCS. It would thus be inconsistent with
applicable law for EPA, when it reviews a SIP submission, to use VCS in
place of a SIP submission that otherwise satisfies the provisions of
the Clean Air Act. Thus, the requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) do not apply. This rule does not impose an information collection
burden under the provisions of the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.).
B. 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. Section 804 exempts from section 801 the following types
of rules: (1) Rules of particular applicability; (2) rules relating to
agency management or personnel; and (3) 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 source-
specific requirements for two individual sources.
C. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by February 11, 2005. 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 pertaining to the Virginia NOX
RACT Determinations for the Central Intelligence Agency and the
National Reconnaissance Office, 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: December 6, 2004.
Donald S. Welsh,
Regional Administrator, Region III.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart VV--Virginia
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2. In Sec. 52.2420, the table in paragraph (d) is amended by adding
entries for Central Intelligence Agency (CIA), George Bush Center for
Intelligence and National Reconnaissance Office, Boeing Service Center
at the end of the table to read as follows:
Sec. 52.2420 Identification of plan.
* * * * *
(d) * * *
EPA--Approved Source Specific Requirements
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Permit/order or
Source name registration State EPA approval date 40 CFR part 52
number effective date citation
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* * * * * * *
Central Intelligence Agency Registration No. 04/16/04 12/13/04 [Insert page 52.2420(d)(6)
(CIA), George Bush Center for 71757. number where the
Intelligence. document begins].
National Reconnaissance Office, Registration No. 04/16/04 12/13/04 [Insert page 52.2420(d)(6)
Boeing Service Center. 71988. number where the
document begins].
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[FR Doc. 04-27260 Filed 12-10-04; 8:45 am]
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