ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Part
52
[
EPA­
R03­
OAR­
2006­
0059;
FRL­
]

Approval
and
Promulgation
of
Air
Quality
Implementation
Plans;
Virginia;
State
Implementation
Plan
Revision
for
Burlington
Industries,
Clarksville,
Virginia
AGENCY:
Environmental
Protection
Agency
(
EPA).

ACTION:
Proposed
rule.

SUMMARY:
EPA
is
proposing
to
approve
a
State
Implementation
Plan
(
SIP)
revision
submitted
by
the
Commonwealth
of
Virginia.
This
revision
pertains
to
the
removal
of
a
Consent
Agreement
from
the
Virginia
SIP.
The
Consent
Agreement
was
written
for
the
control
of
emissions
of
sulfur
dioxide
from
the
Burlington
Industries
facility
located
in
Clarksville,

Mecklenburg
County,
Virginia.
This
Agreement
has
been
superseded
by
a
federally
enforceable
state
operating
permit
dated
May
17,
2004,
which
imposes
operating
restrictions
on
the
facility's
boilers
and
the
subsequent
shutdown
of
the
remainder
of
the
facility.
This
action
is
being
taken
under
the
Clean
Air
Act
(
CAA
or
the
Act).

DATES:
Written
comments
must
be
received
on
or
before
[
insert
date
30
days
from
date
of
publication].

ADDRESSES:
Submit
your
comments,
identified
by
Docket
ID
Number
EPA­
R03­
OAR­

2006­
0059
by
one
of
the
following
methods:

A.
www.
regulations.
gov.
Follow
the
on­
line
instructions
for
submitting
comments.

B.
E­
mail:
campbell.
david@
epa.
gov
2
C.
Mail:
EPA­
R03­
OAR­
2006­
0059,
David
J.
Campbell,
Chief,
Permits
and
Technical
Assistance
Branch,
Mailcode
3AP11,
U.
S.
Environmental
Protection
Agency,
Region
III,
1650
Arch
Street,
Philadelphia,
Pennsylvania
19103.

D.
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
Docket
ID
No.
EPA­
R03­
OAR­
2006­
0059.
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.
epa.
gov/
edocketwww.
regulations.
gov,
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
www.
regulations.
gov
or
e­
mail.
The
www.
regulations.
gov
website
is
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
www.
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.
3
Docket:
All
documents
in
the
electronic
docket
are
listed
in
the
www.
regulations.
gov
index.

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
www.
regulations.
gov
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.

FOR
FURTHER
INFORMATION
CONTACT:
Sharon
McCauley,
(
215)
814­
3376,
or
by
email
at
mccauley.
sharon@
epa.
gov.

SUPPLEMENTARY
INFORMATION:
On
July
12,
2004,
the
Virginia
Department
of
Environmental
Quality
submitted
a
revision
request
to
its
SIP
entitled
"
SIP
Revision
for
Burlington
Industries".
The
request
was
for
the
removal
of
a
Consent
Agreement
incorporated
into
the
Virginia
SIP.
This
agreement
was
written
to
regulate
the
control
of
emissions
of
sulfur
dioxide
from
the
Burlington
Industries
facility
located
in
Clarksville,
Virginia.

I.
Background
The
need
to
restrict
the
operation
and
reduce
the
allowable
sulfur
dioxide
emissions
of
the
Burlington
Industries
facility
was
discovered
through
an
Air
Quality
Impact
Analysis
supporting
a
Prevention
of
Significant
Deterioration
permit
application
submitted
by
the
Mecklenburg
4
Cogeneration
Limited
Partnership.
The
analysis
indicated
that
Burlington
Industries
had
the
potential
to
exceed
the
primary
and
secondary
National
Ambient
Air
Quality
Standards
(
NAAQS)
for
sulfur
dioxide
when
operating
at
its
maximum
allowable
levels.
As
a
result,

Burlington
Industries
voluntarily
agreed
to
a
control
program
with
the
Virginia
State
Air
Pollution
Control
Board.

In
1991,
Burlington
Industries
submitted
a
plan
(
including
proposed
operating
restrictions
and
a
dispersion
modeling
demonstration)
for
mitigating
any
potential
NAAQS
violations.
Because
no
regulations
for
issuing
operating
permits
existed
at
that
time
in
Virginia,
the
plan
was
incorporated
into
a
legally
enforceable
Consent
Agreement
on
November
19,
1991
between
the
Commonwealth
and
Burlington
Industries.
In
order
to
then
make
the
provisions
federally
enforceable,
Virginia
submitted
the
Consent
Agreement
to
EPA
as
part
of
a
SIP
revision,
and
EPA
subsequently
approved
this
SIP
revision
on
March
18,
1992
(
57
FR
9388).

II.
Summary
of
SIP
Revision
EPA
is
proposing
to
approve
this
SIP
revision
submitted
by
the
Commonwealth
of
Virginia.

Burlington
Industries'
federal
operating
(
Title
V)
permit
which
included
conditions
from
the
Consent
Agreement
was
issued
on
December
14,
2001.
In
2002,
Burlington
Industries
closed
its
facility
and
all
of
the
manufacturing
equipment
was
removed;
however,
the
boilers
remained
operable.
Burlington
Industries
requested
that
the
Commonwealth
impose
additional
operating
restrictions
at
the
facility.
As
a
result
of
these
additional
restrictions,
the
facility
is
no
longer
considered
a
major
source
with
respect
to
the
Title
V
program.
In
order
to
make
these
new
restrictions
state
and
Federally
enforceable,
it
is
necessary
to
include
Burlington
Industries
in
a
5
new
Federally
enforceable
state
operating
permit,
which
would
then
become
the
legally
enforceable
mechanism
for
implementing
the
restrictions.

The
new
Federally
enforceable
state
operating
permit
issued
on
May
17,
2004
vacated
the
original
Consent
Agreement
from
Nov.
19,
1991
and
automatically
rendered
it
ineffective
at
the
state
level.
In
order
to
vacate
the
Agreement
at
the
federal
level,
the
Virginia
SIP
must
be
revised
to
remove
the
Consent
Agreement
previously
approved
at
40
CFR
52.2420(
c)(
96),
and
currently
cited
at
40
CFR
52.2420(
d)
and
52.2465(
c)(
96).
EPA
is
proposing
to
remove
the
Consent
Agreement
from
the
Virginia
SIP.

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
6
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
§
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
7
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.
Proposed
Action
EPA
is
proposing
to
approve
the
removal
of
the
vacated
Consent
Agreement
for
Burlington
Industries
from
the
Virginia
SIP.
EPA
is
soliciting
public
comments
on
the
issues
discussed
in
this
document.
These
comments
will
be
considered
before
taking
final
action.

V.
Statutory
and
Executive
Order
Reviews
Under
Executive
Order
12866
(
58
FR
51735,
October
4,
1993),
this
proposed
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
8
13211,
"
Actions
Concerning
Regulations
That
Significantly
Affect
Energy
Supply,
Distribution,

or
Use"
(
66
Fed.
Reg.
28355
(
May
22,
2001)).
This
action
merely
proposes
to
approve
state
law
as
meeting
Federal
requirements
and
imposes
no
additional
requirements
beyond
those
imposed
by
state
law.
Accordingly,
the
Administrator
certifies
that
this
proposed
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
proposes
to
approve
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
proposed
rule
also
does
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),
nor
will
it
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),
because
it
merely
proposes
to
approve
a
state
rule
implementing
a
Federal
requirement,
and
does
not
alter
the
relationship
or
the
distribution
of
power
and
responsibilities
established
in
the
Clean
Air
Act.

This
proposed
rule
also
is
not
subject
to
Executive
Order
13045
(
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
9
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.

As
required
by
section
3
of
Executive
Order
12988
(
61
FR
4729,
February
7,
1996),
in
issuing
this
proposed
rule,
EPA
has
taken
the
necessary
steps
to
eliminate
drafting
errors
and
ambiguity,

minimize
potential
litigation,
and
provide
a
clear
legal
standard
for
affected
conduct.
EPA
has
complied
with
Executive
Order
12630
(
53
FR
8859,
March
15,
1988)
by
examining
the
takings
implications
of
the
rule
in
accordance
with
the
"
Attorney
General's
Supplemental
Guidelines
for
the
Evaluation
of
Risk
and
Avoidance
of
Unanticipated
Takings"
issued
under
the
executive
order.
This
proposed
rule
to
approve
the
Virginia
Department
of
Environmental
Quality
State
Implementation
Plan
revision
request
for
the
removal
of
the
Consent
Agreement
for
the
Burlington
Industries
facility
located
in
Clarksville,
Mecklenburg
County,
Virginia,
does
not
impose
an
information
collection
burden
under
the
provisions
of
the
Paperwork
Reduction
Act
of
1995
(
44
U.
S.
C.
3501
et
seq.).

List
of
Subjects
in
40
CFR
Part
52
Environmental
protection,
Air
pollution
control,
Reporting
and
recordkeeping
requirements,
Sulfur
oxides
Authority:
42
U.
S.
C.
7401
et
seq.

/
s/
___________________________
____________________________
Dated:
June
27,
2006
William
T.
Wisniewski,
Acting
Regional
Administrator,
Region
III.
