[Federal Register: December 29, 2004 (Volume 69, Number 249)]
[Rules and Regulations]
[Page 77900-77903]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29de04-7]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[R03-OAR-2004-VA-0005; FRL-7853-7]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Approval of the Control of VOC Emissions From Municipal Solid
Waste Landfills in Northern Virginia
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action to approve a revision to the
Commonwealth of Virginia (the Commonwealth) State Implementation Plan
(SIP). The revision establishes regulations for the control of volatile
organic compound (VOC) emissions from municipal solid waste landfills
(MSWLs) located in the Northern Virginia Portion of the Metropolitan
Washington, D.C. Ozone Nonattainment Area. (Northern Virginia). EPA is
approving this revision to the SIP in accordance with the requirements
of the Clean Air Act (CAA or the Act).
DATES: This rule is effective on February 28, 2005, without further
notice, unless EPA receives adverse written comment by January 28,
2005. If EPA receives such comments, it 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: Submit your comments, identified by Regional Material in
Edocket (RME) ID Number R03-OAR-2004-VA-0005 by one of the following
methods:
A. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the on-line instructions for submitting comments.
B. Agency Web site: http://www.docket.epa.gov/rmepub/ RME, EPA's
electronic public docket and comment system, is EPA's preferred method
for receiving comments. Follow the on-line instructions for submitting
comments.
C. E-mail: Morris.Makeba@epa.gov.
D. Mail: R03-OAR-2003-VA-0005, Makeba Morris, Chief, Air Quality
Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency,
Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
E. Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to RME ID No. R03-OAR-2004-VA-
0005. EPA's policy is that all comments received will be included in
the public docket without change, and may be made available online at
http://www.docket.epa.gov/rmepub/, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through RME, regulations.gov
or e-mail. The EPA RME and the Federal regulations.gov Web sites are an
``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through RME or regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the electronic docket are listed in the
RME index at http://www.docket.epa.gov/rmepub/. Although listed in the
index, some information is not publicly available, i.e., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically in RME
or in hard copy during normal business hours at the Air Protection
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch
Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal
are available at the Virginia Department of Environmental Quality, 629
East Main Street, Richmond, Virginia 23219.
FOR FURTHER INFORMATION CONTACT: Janice Lewis, (215) 814-2185, or by e-
mail at lewis.janice@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On February 12, 2004, the Commonwealth submitted a revision to its
State Implementation Plan (SIP). The SIP revision consists of
regulations to control VOC emissions from Municipal Solid Waste
Landfills (MSWLs) in the Northern Virginia portion of the Metropolitan
Washington, D.C. Ozone Nonattainment Area. The regulation establishes
emission standards for MSWLs, as well as operational, monitoring and
reporting requirements. This revision applies to the Northern Virginia
portion of the Metropolitan Washington, D.C. Ozone Nonattainment Area,
and is not intended to apply to
[[Page 77901]]
any other portion of the Commonwealth.
II. Summary of SIP Revision
The Commonwealth's February 12, 2004 submittal includes regulations
that apply to MSWLs which commenced construction, reconstruction, or
modification before May 30, 1991 in the Northern Virginia VOC Control
Area (Arlington County, Alexandria City, Fairfax County, Fairfax City,
Falls Church City, Loudon County, Manassas City, Manassas Park City,
Prince William County, and Stafford County) as designated in 9 VAC 5-
20-206. The landfill design capacity applicability criteria is 1.0
million megagrams (Mg) or more and 1.0 million cubic meters. The
emission rate applicability criteria is emissions of nonmethane organic
compound (NMOCs) greater than or equal to 23 Mg per year. The primary
components of MSWL emissions are methane and NMOCs. VOCs are a
component of NMOCs.
Landfills that have a design capacity greater than or equal to 1.0
million Mg and 1.0 million cubic meters are required to test and report
their emission rate annually. If the NMOC emission rate exceeds 23 Mg
per year, the MSWL is required to submit plans for and to install a
collection system and control system for the subject emissions. The
regulation establishes specifications for the collection and control
systems and provide test methods and calculation procedures for
estimating NMOC emission rates. In addition, the regulation provides
compliance schedules and reporting requirements, and incorporates
control and equipment maintenance and malfunction provisions.
III. General Information Pertaining to SIP Submittals From the
Commonwealth of Virginia
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, 1998, 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,
1998 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.
IV. Final Action
EPA is approving the revision to the Commonwealth's SIP which
establish regulations for the control of emission of volatile organic
compound (VOC) emissions from municipal solid waste landfills (MSWLs)
located in Northern Virginia portion of the Metropolitan Washington,
D.C. Ozone Nonattainment Area (Northern Virginia). This revision
applies only to the Northern Virginia Ozone Nonattainment Area, and is
not intended to apply to any other part of the Commonwealth.
EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comment. However, in the ``Proposed Rules'' section of today's
Federal Register, EPA is publishing a separate document that will serve
as the proposal to approve the SIP revision if adverse comments are
filed. This rule will be effective on February 28, 2005 without further
notice unless EPA receives adverse comment by January 28, 2005. If EPA
receives adverse comment, EPA will publish a timely withdrawal in the
Federal Register informing the public that the rule will not take
effect. EPA will address all public comments in a subsequent final rule
based on the proposed rule. EPA will not institute a second comment
period on this action. Any parties interested in commenting must do so
at this time. Please note that if EPA receives adverse comment on an
amendment, paragraph, or section of this rule and if that provision may
be severed from the remainder of the rule, EPA may adopt as final those
provisions of the rule that are not the subject of an adverse comment.
V. 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
[[Page 77902]]
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
(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. 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).
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 28, 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, approving the Commonwealth of Virginia's regulation to
require municipal solid waste landfills in Northern Virginia to control
emissions of volatile organic compounds 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, Ozone, Reporting
and recordkeeping requirements, Volatile organic compounds.
Dated: December 14, 2004.
Donald S. Welsh,
Regional Administrator, Region III.
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40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
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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. Section 52.2420, the table in paragraph (c) is amended by adding
entries under chapter 40, part II to read as follows:
Sec. 52.2420 Identification of plan.
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(c) EPA approved regulations and statutes.
EPA--Approved Regulations and Statutes in the Virginia SIP
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Explanation
State citation (9 VAC Title/subject State effective EPA approval date (former SIP
5) date section)
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Chapter 40 Existing Stationary Sources
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Part II Emission Standards
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Article 43 Municipal Solid Waste Landfills (Rule 4-43)
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[FR Doc. 04-28351 Filed 12-28-04; 8:45 am]
BILLING CODE 6560-50-P