[Federal Register: April 27, 2005 (Volume 70, Number 80)]
[Rules and Regulations]
[Page 21621-21625]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27ap05-6]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[R03-OAR-2005-VA-0001; FRL-7904-5]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; NOX RACT Determinations for Four Individual Sources
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: Environmental Protection Agency (EPA) is taking direct final
action to approve revisions to the Commonwealth of Virginia's State
Implementation Plan (SIP). The revisions were submitted by the Virginia
Department of Environmental Quality (VADEQ) to establish and require
reasonably available control technology (RACT) for four major sources
of nitrogen oxides (NOX). These sources are located in the
Western Virginia Emissions Control Area. EPA is approving these
revisions to establish RACT requirements in the SIP in accordance with
the Clean Air Act (CAA).
DATES: This rule is effective on June 27, 2005, without further notice,
unless EPA receives adverse written comment by May 27, 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-2005-VA-0001 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: campbell. david commat;epa.gov.
D. Mail: R03 - OAR - 2005- VA-0001, David Campbell, 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-2005-VA-
0001. 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: Rose Quinto, (215) 814-2182, or by e-
mail at quinto.rose@epa.gov.
SUPPLEMENTARY INFORMATION:
[[Page 21622]]
I. Background
Prior to the establishment of the 8-hour ozone nonattainment areas,
EPA developed a program to allow these potential nonattainment areas to
voluntarily adopt local emission control programs to avoid air quality
violations and mandated nonattainment area controls. Areas with air
quality meeting the 1-hour ozone standard were eligible to participate.
In order to participate, state and local governments and EPA developed
and signed a memorandum of agreement that describes the local control
measures the state or local community intends to adopt and implement to
reduce ozone emissions in advance of air quality violations. In this
agreement, also known as an Early Action Compact (EAC), the state or
local communities agree to prepare emission inventories and conduct air
quality modeling and monitoring to support its selection of emission
controls. Areas that participate in the EAC program have the
flexibility to institute their own approach in maintaining clean air
and protecting public health. For a period of time (generally not to
exceed 5 years), participating areas can avoid a nonattainment
designation.
Several localities in the Winchester and Roanoke areas have elected
to participate in the EAC program. The areas that signed an EAC are the
City of Winchester and Frederick County, which comprise the Northern
Shenandoah Valley EAC; and the cities of Roanoke and Salem, and the
counties of Roanoke and Botetourt, which comprise the Roanoke EAC.
Virginia's strategy for enabling these localities to participate in the
EAC program is to have them be subject to volatile organic compound
(VOC) and NOX control measures from which they had, until
this time, been exempt. In order to enable the affected localities to
implement these VOC and NOX controls, the Virginia
Regulations for the Control of Abatement of Air Pollution were revised
to include these affected localities. In a separate rulemaking action,
the list of VOC and NOX emission control areas (9 VAC 5-20-
206) was expanded to include the EAC areas as the Western Virginia
Emissions Control Area. With this expansion, the VOC and NOX
control rules of Chapter 40 became applicable in these areas.
In order to implement the NOX control measures, VADEQ
adopted a regulation (Rule 4-4) which provides that VADEQ must, on
case-by-case basis, determine whether there is RACT to reduce
NOX emissions from major sources for which EPA has not
issued control techniques guideline (CTG). EPA has approved the
regulation (Rule 4-4) in a separate rulemaking action. A major source
in the Western Virginia Emissions Control Area subject to Rule 4-4,
emits or has the potential to emit 100 tons per year of NOX.
CTGs are documents issued to define RACT for a particular source
category. EPA has defined RACT as the lowest emission limit that a
particular source is capable of meeting by the application of control
technology that is reasonably available considering technological and
economic feasibility.
The following sources in the Western Virginia Emissions Control
Area have been identified as sources subject to the RACT requirements:
(1) Roanoke Electric Steel Corporation Steel Mini-Mill located in the
City of Roanoke, (2) Roanoke Cement Company Portland Manufacturing
Plant located in Troutville, County of Botetourt; (3) Norfolk Southern
Railway Company--East End Shops located in the City of Roanoke; and (4)
Global Stone Chemstone Corporation located in Frederick County.
II. Summary of the SIP Revisions
On January 31, February 3, 7, and 14, 2005, VADEQ submitted
revisions to the Virginia SIP which establish and impose RACT for four
sources of NOX. The Commonwealth's submittals consist of
permits to operate which impose NOX RACT requirements for
each source.
Copies of the actual permits to operate imposing RACT and VADEQ's
evaluation memoranda are included in the electronic and hard copy
docket for this final rule. As previously stated, all documents in the
electronic docket are listed in the RME index at http://www.docket.epa.gov/rmepub/.
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.
The table below identifies the sources and the individual permits
to operate which are the subject of this rulemaking.
Western Virginia Emissions Control Area--NOX RACT Determinations for Individual Sources
----------------------------------------------------------------------------------------------------------------
Permit/order or
Source Location registration Source type ``Major source''
number pollutant
----------------------------------------------------------------------------------------------------------------
Roanoke Electric Steel City of Roanoke.... Registration No. Steel mill........ NOX
Corporation. 20131.
Roanoke Cement Company.......... Troutville, County Registration No. Cement kiln....... NOX
of Botetourt. 20232.
Norfolk Southern Railway City of Roanoke.... Registration No. Rail car and NOX
Company--East End Shops. 20468. locomotive
maintenance.
Global Stone Chemstone Clear Brook, Registration No. Lime manufacturing NOX
Corporation--Winchester Frederick County. 80504.
Facility.
----------------------------------------------------------------------------------------------------------------
III. EPA's Evaluation of the SIP Revisions
EPA is approving these RACT SIP submittals because VADEQ
established and imposed requirements in accordance with the criteria
set forth in SIP-approved regulations for imposing RACT. The
Commonwealth has also imposed record-keeping, monitoring and testing
requirements on these sources sufficient to determine compliance with
the applicable RACT determinations.
IV. 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
[[Page 21623]]
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.
V. Final Action
EPA is approving the revisions to the Virginia SIP submitted by
VADEQ to establish and require NOX RACT for four major
sources. These SIP revisions are necessary to implement the Early
Action Compact Plan for the Roanoke and the Northern Shenandoah Valley
Ozone Early Action Compact Plan. 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 June 27, 2005, without further notice unless EPA
receives adverse comment by May 27, 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.
VI. 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 (Pub. L. 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
[[Page 21624]]
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 four named 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 June 27, 2005. Filing a
petition for reconsideration by the Administrator of this final rule
approving source-specific RACT requirements for four sources in the
Commonwealth of Virginia 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, Nitrogen dioxide,
Ozone, Reporting and recordkeeping requirements, Volatile organic
compounds.
Dated: April 19, 2005.
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
0
2. In Sec. 52.2420, the table in paragraph (d) is amended by adding
entries for Roanoke Electric Steel Corp., Roanoke Cement Company,
Norfolk Southern Railway Company--East End Shops and Global Stone
Chemstone Corporation at the end of the table to read as follows:
Sec. 52.2420 Identification of plan.
* * * * *
(d) * * *
EPA-Approved Virginia Source-Specific Requirements
----------------------------------------------------------------------------------------------------------------
Permit/order or
Source name registration State effective date EPA approval date 40 CFR part 52
number citation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Roanoke Electric Steel Corp.. Registration December 22, 2004 April 27, 2005 52.2420(d)(7)
No. 20131. [Insert page number
where the document
begins]
Roanoke Cement Company....... Registration December 22, 2004 April 27, 2005 52.2420(d)(7)
No. 20131. [Insert page number
where the document
begins]
Norfolk Southern Railway Registration December 22, 2004 April 27, 2005 52.2420(d)(7)
Company--East End Shops. No. 20468. [Insert page number
where the document
begins]
Global Stone Chemstone Registration February 9, 2005 April 27, 2005 52.2420(d)(7)
Corporation. No. 80504. [Insert page number
where the document
begins]
----------------------------------------------------------------------------------------------------------------
[[Page 21625]]
[FR Doc. 05-8441 Filed 4-26-05; 8:45 am]
BILLING CODE 6560-50-P