	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

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

	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.

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’s State Implementation Plan
in accordance with the requirements of the Clean Air Act.

             

DATES:  This rule is effective on [Insert date 60 days after publication
in the Federal Register] without further notice, unless EPA receives
adverse written comment by [Insert date 30 days after publication in the
Federal Register].  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:   

  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 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 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.

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, 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 US
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
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, Section 63.440
through 63.459.  International 

Paper’s Franklin Mill is subject to subpart S.  Under Section 112(1)
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 (
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 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 [Insert
date 60 days from date of 

publication in the Federal Register] without further notice unless EPA
receives adverse comment 

by [Insert date 30 days from date of publication in the Federal
Register].  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
(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 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 [insert date 60 days from 

date of publication of this document in the Federal Register].  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.

July 31, 2007

_________________                   		         
_________/s/_________________

Dated:                                				William T. Wisniewski,

                                      				Acting Regional Administrator,

                                      				Region III.

  

40 CFR Part 52 is amended as follows: 

PART 52 - [AMENDED] 

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

2.  In ( 52.2420, the table in paragraph (c) is amended by adding the
entry for Chapter 230 to read as follows:

( 52.2420  	Identification of plan.

*	*	*	*	*	

	EPA-APPROVED REGULATIONS IN THE VIRGINIA SIP

State citation

(9 VAC 5 Chapter 230)	

Title/subject	

State effective date	

EPA approval date	

Explanation

[former SIP citation]



*   *   *   *   *   *   *

Chapter 230	Variance for International Paper Franklin Paper Mill

5-230-10 

	Applicability and designation of affected facility

	09/07/05

	[Insert Federal Register publication date] [Insert page number where
the document begins]



	5-230-20

	Definitions

	09/07/05

	[Insert Federal Register publication date] [Insert page number where
the document begins]



	5-230-30	Authority to operate under this chapter and FESOP 	09/07/05

	[Insert Federal Register publication date] [Insert page number where
the document begins]



	5-230-40 (Except A.7., A.9., A.10., and B.2.)	Sitewide Emissions Caps
09/07/05

	[Insert Federal Register publication date] [Insert page number where
the document begins]



	5-230-50	New Source Review program and registration requirements
09/07/05

	[Insert Federal Register publication date] [Insert page number where
the document begins]



	5-230-60  (Except A.1.)	Other regulatory requirements	09/07/05	[Insert
Federal Register publication date] [Insert page number where the
document begins]



	5-230-70	Federal Operating Permits	09/07/05

	[Insert Federal Register publication date] [Insert page number where
the document begins]



	5-230-80	FESOP issuance and amendments	09/07/05

	[Insert Federal Register publication date] [Insert page number where
the document begins]



	5-230-90	Transfer of ownership

	09/07/05

	[Insert Federal Register publication date] [Insert page number where
the document begins]



	5-230-100	Applicability of future regulation amendments	09/07/05

	[Insert Federal Register publication date] [Insert page number where
the document begins]



	5-230-110	Termination of authority to operate under this chapter and
FESOP	09/07/05

	[Insert Federal Register publication date] [Insert page number where
the document begins]



	5-230-120	Review and confirmation of this chapter by Board	09/07/05

	[Insert Federal Register publication date] [Insert page number where
the document begins]



	

*   *   *   *    *    *    *	



*	*	*	*	*	

 PAGE   

 PAGE   2 

 PAGE   13 

