

[Federal Register: August 13, 2007 (Volume 72, Number 155)]
[Rules and Regulations]               
[Page 45165-45169]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13au07-12]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2006-0060; FRL-8452-6]

 
Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; State Implementation Plan Revision Variance for International 
Paper, Franklin Paper Mill, Virginia

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve revisions to the 
Commonwealth of Virginia State Implementation Plan (SIP). This action 
will approve the SIP revision request submitted by the Commonwealth of 
Virginia, consisting of the variance regulations adopted by Virginia 
for the International Paper, Franklin Paper Mill facility. The variance 
regulations provide regulatory relief from compliance with state 
regulations governing new source review for the implementation of the 
International Paper, Franklin Paper Mill innovation project. In lieu of 
compliance with these regulatory requirements, the variance requires 
the facility to comply with site-wide emission caps. EPA is approving 
this revision to the Commonwealth of Virginia State Implementation Plan 
in accordance with the requirements of the Clean Air Act.

DATES: This rule is effective on October 12, 2007 without further 
notice, unless EPA receives adverse written comment by September 12, 
2007. 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 Docket ID Number EPA-
R03-OAR-2006-0060 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 

submitting comments.
    B. E-mail: campbell.dave@epa.gov.
    C. Mail: EPA-R03-OAR-2006-0060, David Campbell, Chief, Permits and 
Technical Assessment 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-
2006-0060. 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.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 http://www.regulations.gov or e-mail. 

The http://www.regulations.gov Web site 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 http://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.
    Docket: All documents in the electronic docket are listed in the 
http://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 http://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 23219.

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

SUPPLEMENTARY INFORMATION:

I. Background

    International Paper operates a pulp and paper mill located in 
Franklin, Virginia. International Paper is a member of EPA's voluntary 
National Environmental Performance Track Program and the Virginia 
Department of Environmental Quality's (VADEQ) Environmental Excellence 
Program. International Paper had entered into a partnership with the 
U.S. EPA and the VADEQ to implement an innovative approach to meeting 
environmental regulations in a more cost-effective manner. 
International Paper submitted a proposal for such an innovative project 
to VADEQ. International Paper's innovation project relied on the 
principles established in the Joint EPA/State Agreement to Pursue 
Regulatory Innovation that was signed by EPA and the Environmental 
Council of States (ECOS) in 1998.
    The International Paper innovation project includes a number of 
environmentally beneficial projects that will: (1) Reduce groundwater 
use; (2) reduce solid waste generation and disposal; (3) reduce 
chemical and biological oxygen demand, and total suspended solids 
discharges to surface water; (4) reduce overall emissions for a number 
of air pollutants; and, (5) increase the efficiency of pulp production.
    By implementing this project, emissions of hazardous air pollutants 
will be reduced at the Mill by an estimated 430 tons per year. 
Emissions increases of criteria pollutants and carbon dioxide from 
typical NESHAP control strategies will also be reduced under this 
project. These reductions, along with improvements in the combustion 
efficiencies of the No. 7 power boiler and No. 6 recovery furnace will 
result in a decreased use of fossil fuels and will net large decreases 
in criteria pollutant emissions from the Mill. The reduction in useable 
fiber discharges in the mill sewer along with improvements in the 
performance of the wastewater treatment system will result in 
substantial reductions in discharges of wastewater pollutants. 
Generation of thousands of tons per year of solid waste will also be 
eliminated.
    In order to implement these projects, certain innovations to the 
typical regulatory implementation process were necessary in order to 
make these environmentally beneficial projects a reality. First, the 
International Paper innovation project required an

[[Page 45166]]

alternative regulatory approach under section 112 of the Clean Air Act 
(CAA). Pursuant to section 112, EPA promulgates the national emissions 
standards for hazardous air pollutants (NESHAP) for various categories 
of air pollution sources. On April 15, 1998, EPA promulgated a NESHAP 
for the Pulp and Paper Industry, as codified at 40 CFR part 63, subpart 
S, Sec.  63.440 through 63.459. International Paper's Franklin Mill is 
subject to subpart S. Under Section 112(l) of the CAA, EPA may approve 
State or local rules or programs to be implemented and enforced in 
place of certain otherwise applicable Federally-promulgated section 112 
rules, emission standards, or requirements. On April 15, 2004 (69 FR 
19943), EPA published in the Federal Register an approval of an 
equivalency-by-permit determination made by the VADEQ for the 
International Paper, Franklin Mill. The VADEQ established the new 
requirements via a title V operating permit issued to the facility on 
March 31, 2006. In general, the equivalency-by-permit terms require 
International Paper to control different emission points of hazardous 
air pollutants (HAPs) at its facility than prescribed by the Pulp and 
Paper NESHAP (subpart S).
    In addition to the approval above and in order to implement some of 
the other environmentally-beneficial projects contained in the 
innovation project proposal, International Paper would also need 
certain flexibility under the Commonwealth's existing preconstruction 
permitting regulations. The subject of this rulemaking action is to 
allow for those flexibilities by providing a limited variance to 
Virginia's existing permitting regulations. The variance allows the 
Commonwealth to establish site-wide emissions caps for a variety of 
pollutants, mostly criteria pollutants. The site-wide caps would be 
relied upon to limit the applicability of the provisions of Virginia's 
federally-enforceable major new source review provisions. Under 
Virginia's existing programs, sources may not rely upon site-wide 
emissions caps in order to limit the applicability of major new source 
review.
    Typically, unit-specific limitations are required. The site-wide 
caps allow International Paper to make certain changes to its emission 
sources, primarily the boilers, that will allow them to maximize their 
utilization while minimizing their existing emissions and limiting 
their future potential emissions. Site-wide emissions caps are a type 
of new source review program flexibility that EPA has experimented with 
in the past. In fact, EPA made changes to the federal new source review 
regulations at the end of 2002 (See 67 FR 80186) that incorporated this 
type of regulatory flexibility and called it a ``plantwide 
applicability limit''.

II. Summary of SIP Revision

    On December 13, 2005, the DEQ submitted a State Implementation Plan 
(SIP) approval request entitled ``Variance for International Paper, 
Franklin Paper Mill''. The applicable regulations for the variance were 
adopted by the State Air Pollution Control Board on June 22, 2005 in 
accordance with the requirements of the Virginia Air Pollution Control 
Law at Title 10.1 Chapter 13 of the Code of Virginia and 40 CFR part 
51. These regulations allow the VADEQ to issue a permit for 
International Paper that will replace all previously issued minor NSR 
permits and PSD permits and establish site-wide emission caps for a 
number of regulated pollutants that may be relied upon for purposes of 
new source review applicability. The variance provides regulatory 
relief from compliance with state regulations governing new source 
review (Virginia Code--Article 4 of Chapter 50, and Articles 6, 8 and 9 
of Chapter 80) for the implementation of the International Paper 
innovation project. In lieu of compliance with these regulatory 
requirements, the variance requires the facility to comply with site-
wide emission caps.

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,

[[Page 45167]]

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 this SIP revision request submitted by the 
Commonwealth of Virginia. This revision consists of approving the 
variance regulations adopted by Virginia at 9 VAC 5 Chapter 230 for the 
International Paper, Franklin Paper Mill. The variance provides 
regulatory relief from compliance with state regulations governing new 
source review for the implementation of the International Paper 
innovation project. In lieu of compliance with these regulatory 
requirements, the variance requires the facility to comply with site-
wide emission caps. EPA is publishing this rule without prior proposal 
because the Agency views this as a non-controversial amendment and 
anticipates no adverse comment. This variance includes a number of 
environmentally beneficial projects which will reduce groundwater use, 
reduce solid waste generation and disposal, reduce Chemical Oxygen 
Demand and Total Suspended Solids disposal to surface water, increase 
the efficiency of pulp production and reduce overall emissions for a 
number of air pollutants. 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 October 12, 2007 
without further notice unless EPA receives adverse comment by September 
12, 2007. 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 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 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 
requirement, 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 approves a state rule implementing a Federal 
standard.
    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 October 12, 2007. 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 variance for International 
Paper, Franklin Paper Mill in Franklin, Virginia 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, Carbon monoxide, 
Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.


[[Page 45168]]


    Dated: July 31, 2007.
William T. Wisniewski,
Acting Regional Administrator, Region III.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for 40 CFR 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 (c) is amended by adding 
the entry for Chapter 230 to read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

                                 EPA-Approved Virginia Regulations and Statutes
----------------------------------------------------------------------------------------------------------------
                                                            State                            Explanation [former
    State citation (9 VAC 5)         Title/subject     effective date    EPA approval date      SIP citation]
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                        Chapter 230 Variance for International Paper Franklin Paper Mill
----------------------------------------------------------------------------------------------------------------
5-230-10........................  Applicability and          09/07/05  08/13/07 [Insert      ...................
                                   designation of                       page number where
                                   affected facility.                   the document
                                                                        begins].
5-230-20........................  Definitions........        09/07/05  08/13/07 [Insert      ...................
                                                                        page number where
                                                                        the document
                                                                        begins].
5-230-30........................  Authority to               09/07/05  08/13/07 [Insert      ...................
                                   operate under this                   page number where
                                   chapter and FESOP.                   the document
                                                                        begins].
5-230-40 (Except A.7., A.9.,      Sitewide Emissions         09/07/05  08/13/07 [Insert      ...................
 A.10., and B.2.).                 Caps.                                page number where
                                                                        the document
                                                                        begins]
5-230-50........................  New Source Review          09/07/05  08/13/07 [Insert      ...................
                                   program and                          page number where
                                   registration                         the document
                                   requirements.                        begins].
5-230-60 (Except A.1.)..........  Other regulatory           09/07/05  08/13/07 [Insert      ...................
                                   requirements.                        page number where
                                                                        the document
                                                                        begins].
5-230-70........................  Federal Operating          09/07/05  08/13/07 [Insert      ...................
                                   Permits.                             page number where
                                                                        the document
                                                                        begins].
5-230-80........................  FESOP issuance and         09/07/05  08/13/07 [Insert      ...................
                                   amendments.                          page number where
                                                                        the document
                                                                        begins].
5-230-90........................  Transfer of                09/07/05  08/13/07 [Insert      ...................
                                   ownership.                           page number where
                                                                        the document
                                                                        begins].
5-230-100.......................  Applicability of           09/07/05  08/13/07 [Insert      ...................
                                   future regulation                    page number where
                                   amendments.                          the document
                                                                        begins].
5-230-110.......................  Termination of             09/07/05  08/13/07 [Insert      ...................
                                   authority to                         page number where
                                   operate under this                   the document
                                   chapter and FESOP.                   begins].
5-230-120.......................  Review and                 09/07/05  08/13/07 [Insert      ...................
                                   confirmation of                      page number where
                                   this chapter by                      the document
                                   Board.                               begins].

                                                  * * * * * * *
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[FR Doc. E7-15587 Filed 8-10-07; 8:45 am]

BILLING CODE 6560-50-P
