
[Federal Register: December 22, 2008 (Volume 73, Number 246)]
[Rules and Regulations]
[Page 78192-78196]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22de08-17]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2008-0472; FRL-8755-1]


Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Stafford County Reasonably Available Control Technology Under
the 8-Hour Ozone National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision
submitted by theCommonwealth of Virginia. This SIP revision fulfills
Virginia's reasonably available control technology (RACT) requirements
under the Clean Air Act (CAA or the Act) with respect to the 8-hour
ozone national ambient air quality standard (NAAQS) in Stafford County.
Virginia has fulfilled these requirements by submitting a certification
that 1-hour ozone NAAQS RACT controls for sources in the Commonwealth
subject to control technology guidelines (CTGs) and for a single major
source not subject to any CTG, continue to represent RACT under the 8-
hour NAAQS, and submitting a negative declaration demonstrating that no
facilities exist in Stafford County that are subject to certain
enumerated CTGs that have not been adopted by Virginia.

DATES: Effective Date: This final rule is effective on January 21,
2009.

ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2008-0472. All documents in the docket are listed in
the http://www.regulations.gov Web site. Although listed in the
electronic docket, some information is not publicly available, i.e.,
confidential business information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the Internet andwill be publicly
available only in hard copy form. Publicly available docket materials
are available either electronically through http://www.regulations.gov
or in hard copy for public inspection 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: Gregory Becoat, (215) 814-2036, or by
e-mail at becoat.gregory@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    On August 7, 2008 (73 FR 45925), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed
approval of Stafford County's requirements of RACT under the 8-hour
ozone NAAQS set forth by the CAA. The formal SIP revision was submitted
by the Virginia Department of Environmental Quality on April 21, 2008.

II. Summary

    Sections 172(c)(1) and 182(b)(2) of the CAA require that all SIPs
satisfy the nitrogen oxides (NOX) and volatile organic
compounds (VOCs) RACT requirements that apply in areas that have not
attained the NAAQS for ozone. See 42 U.S.C. 7502(c)(1), 42 U.S.C.
7511a(b)(2), and 42 U.S.C. 7511a(f). EPA has determined that States
that have RACT provisions approved in their SIPs for 1-hour ozone
nonattainment areas have several options for fulfilling the RACT
requirements for the 8-hour ozone NAAQS. If a State meets certain
conditions, it may certify that previously adopted 1-hour ozone RACT
controls in the SIP continue to represent RACT control levels for
purposes of fulfilling 8-hour ozone RACT requirements. See Final Rule
To Implement the 8-Hour Ozone National Ambient Air Quality Standard--
Phase 2; Final Rule To Implement Certain Aspects of the 1990 Amendments
Relating to New Source Review and Prevention of Significant
Deterioration as They Apply in Carbon Monoxide, Particulate Matter and
Ozone NAAQS; Final Rule for Reformulated Gasoline (Phase 2 Rule) 70 FR
71612, 71655, November 29, 2005. Alternatively, a State may adopt new
or more stringent regulations that represent RACT control levels,
either in lieu of or in conjunction with a certification.
    The Commonwealth of Virginia has submitted a certification that
previously adopted RACT controls in Virginia's SIP that were approved
by EPA under the 1-hour ozone NAAQS continue to represent RACT for the
8-hour implementation purposes. This previously adopted RACT consists
of Virginia's adoption of EPA promulgated CTGs for those source
categories that apply to existing sources in Stafford County. Virginia
has also submitted a negative declaration demonstrating that no
facilities exist in Stafford County for

[[Page 78193]]

those CTGs that have not been adopted by Virginia.
    Virginia has also certified, based on consideration of additional
research, that the 1-hour ozone NAAQS RACT determination for the only
major stationary source located in Stafford County not covered by a CTG
continues to represent RACT under the 8-hour ozone NAAQS. Other
specific requirements of RACT and the rationale for EPA's proposed
action are explained in the NPR and will not be restated here.
    On September 8, 2008, EPA received adverse comments from State of
New Jersey Department of Environmental Protection on the NPR. A summary
of the comments submitted and EPA's response is provided in Section III
of this document.

III. Summary of Public Comments and EPA Responses

    Comment: The commenter opposes the approval of the SIP revision
submitted by Virginia for Stafford County. The commenter notes that
Stafford County is a moderate ozone nonattainment area, and is required
to implement RACT on all major VOC and NOX sources, and all
sources covered by a CTG. The commenter also states that in the final
rule to implement the 8-hour ozone standard (i.e., the Phase 2 Rule)
EPA indicates that States may rely on existing CTGs and the prior 1-
hour RACT determinations as presumptive RACT. The comment also states
that most CTGs and prior 1-hour RACT determinations were done over a
decade ago, and asserts that the emission limits are no longer RACT
because of advancements in air pollution control technology. This is
especially the case, it argues, for nitrogen oxides. Additionally, the
commenter appears to believe that section 108 of the Act requires EPA
to review, modify and reissue control technology in a timely fashion,
that EPA has failed to do so, and that this failure to do so prevents
EPA from allowing States the discretion of certifying that previous 1-
hour ozone RACT determinations fulfill obligations under the 8-hour
ozone NAAQS. The commenter also asserts that it is adversely affected
because it is a downwind state. Finally, the commenter notes that and
sections 110(a)(2)(D) and Part D of the CAA require upwind states to
include adequate controls in their SIPs prohibiting interstate
transport of air pollutants in amounts that contribute to nonattainment
in any downwind state.
    Response: The commenter correctly notes that Stafford County is a
moderate ozone nonattainment area and is required to implement RACT on
all major VOC and NOX sources, and all sources covered by a
CTG. The RACT provisions of the CAA are set forth in sections 172(c)(1)
and 182(b)(2) of Part D of the Act. 42 U.S.C. 7502(c)(1), 42 U.S.C.
7511a(b)(2). Section 172 applies to RACT in so-called ``subpart 1''
areas. Stafford County is not a ``subpart 1'' area. RACT, as it applies
in moderate or above ozone nonattainment areas, or within the OTR,
i.e., to Stafford County, is a specific requirement set forth in
Section 182(b)(2) of Part D of the Act. Section 182(b)(2) identifies
the categories of sources to which RACT applies. Section 182(b)(2) does
not specify the level of control required to meet the RACT requirement.
    The commenter also correctly acknowledges that the Phase 2 Rule, 70
FR 71612, explicitly addressed whether, and the circumstances under
which, states may continue to rely on existing CTGs and the prior 1-
hour RACT determinations. Specifically, in the Phase 2 Rule, EPA
determined that States may certify that ``previously required RACT
controls represent RACT for 8-hour implementation purposes.'' 70 FR at
71652.
    The commenter does not allege that EPA's approval of the SIP
revision is inconsistent with the provisions of the Phase 2 Rule. The
final action establishing those provisions was taken by EPA, not in
today's action, but in the Federal Register notice for the Phase 2 Rule
published on November 29, 2005, 70 FR 71612. Challenges to the Phase 2
Rule have been brought by commenter and others in the U.S. Court of
Appeals for the District of Columbia. Natural Resources Defense Council
v. EPA (D.C. Cir. No. 06-1045 and consolidated cases).
    The Phase 2 Rule, in fact, explicitly addresses the State's
obligation to consider new information when deciding whether to certify
that prior RACT determinations remain valid for the 8-hour ozone NAAQS.
The commenter does not allege that the State has failed to satisfy that
obligation, or that it has not met any other requirements in the Phase
2 Rule for certifying that its prior RACT determinations remain valid
for the 8-hour ozone NAAQS. Thus, while we agree with commenter that
many of the CTGs have not been revised since they were issued, we do
not agree that it is therefore improper for EPA to approve this SIP
revision. In the Phase 2 Rule, EPA specifically addressed concerns
arising from our recognition that ``the CTGs/ACTs * * * may not provide
the most accurate picture of current control options.'' 70 FR at 71655.
    In response, we decided that ``States and other interested parties
should consider available information that may supplement the CTG and
ACT documents. In cases where additional information is presented, for
example, as part of notice-and-comment rulemaking on a RACT SIP
submittal, States (and EPA) would necessarily consider the additional
data in reviewing what control obligation is consistent with RACT.'' 70
FR at 71655. Only after conducting this review may a State certify that
a 1-hour ozone RACT determination continues to represent an appropriate
RACT level of control for the 8-hour ozone program. Id. Absent data
indicating that the previous RACT determination is no longer
appropriate, the State may certify that the existing 1-hour RACT
determination fulfills the requirement for 8-hour ozone RACT, and the
State need not submit in its SIP a new RACT requirement for those
sources. Id.
    Although the commenter broadly alleges that the CTGs no longer
reflect RACT because they have not been updated recently, the commenter
does not identify any specific deficiencies or indicate which, if any,
of the particular CTGs adopted by Virginia it believes to be defective.
Furthermore, no evidence in the record indicates that Virginia either
determined--or that anyone brought to its attention during the notice
and comment rulemaking for this SIP submission--that evidence existed
to cast doubt on the appropriateness under the 8-hour ozone NAAQS of
any of the previously adopted and SIP-approved CTGs. A commenter bears
some burden of bringing to an agency's attention at least some
particulars of an alleged defect in a rulemaking. See, International
Fabricare Inst. v. EPA, 972 F.2d 384, 391 (D.C. Cir. 1992).
    In sum, the commenter has not identified any new information that
has become available, but that the State did not consider and has not
even alleged that any particular CTG actually adopted into the Virginia
SIP fails to represent RACT under the 8-hour ozone NAAQS. Thus, under
the specific terms of the Phase 2 ozone implementation rule, Virginia
is entitled to rely on that Rule's presumption that absent evidence to
the contrary, a state may certify that CTGs previously adopted to meet
1-hour ozone NAAQS continue to meet the requirements for RACT under the
8-hour ozone NAAQS. See 70 FR at 71652, 71654-55.
    With respect to the single major source in Stafford County that is
not subject to a CTG, Virginia took reasonable steps to seek out
additional information to assure that the 1-hour

[[Page 78194]]

ozone NAAQS source-specific RACT determination for this source
continues to represent RACT under the 8-hour ozone NAAQs. This is
consistent with our determination in the Phase 2 Rule that the
certification must be submitted with appropriate supporting
information, including the consideration of new data. In all cases
where additional information is presented, States (and EPA) must
consider the additional information as part of that rulemaking, and
absent such information, the State may certify existing RACT as meeting
the 8-hour ozone requirements. 70 FR at 71655.
    Virginia reviewed EPA's RACT/BACT/LAER clearinghouse for sources
within the same Standard Industrial Classification code as the sole
major non-CTG source in Stafford County, and determined that there was
no information to indicate that the 8-hour ozone RACT determination
should be different from the August 10, 1998 1-hour ozone RACT
determination for this facility, which has been approved by EPA. See 66
FR 8, January 2, 2001. Based on the forgoing, the low potential
emissions from the facility, and the even lower actual emissions from
the facility, Virginia determined in its SIP submission, consistent
with the Phase 2 Rule, that the existing 1-hour RACT determination
could be certified as fulfilling the 8-hour ozone RACT requirements. As
with our analysis with respect to the CTG RACT certification, we
believe that Virginia is entitled to rely on the Phase 2 Rule's
presumption that absent evidence to the contrary, a state may certify
this 1-hour ozone NAAQS determination as meeting the requirements for
RACT under the 8-hour ozone NAAQS.
    We also do not agree with commenter's apparent beliefs regarding
section 108 of the Clean Air Act. With respect to that section, the
commenter states that ``[a]ccording to Section 108(c) of the Clean Air
Act, EPA has an obligation to review, modify and reissue control
techniques'' and that ``USEPA has failed to do so in a timely
fashion.'' Section 108 of the Act provides that ``the Administrator
shall from time to time review, and as appropriate, modify or reissue
any criteria or information on control techniques. * * *'' Section 108
does not establish time frames for the Administrator to review, modify,
or reissue control techniques. Furthermore, section 108 provides that
the review, modification or reissuance of a RACT is only to be done
``as appropriate.'' EPA believes that Congress left the decision
whether to review, modify or reissue a control technique to the
Administrator's discretion.
    Finally, with respect to the comments related to requirements of
section 110(a)(2)(D) and Part D of the Act, EPA agrees with the
commenter that section 110(a)(2)(D) requires, among other things, that
a State's SIP needs to contain provisions to regulate the interstate
transport of air pollution that significantly contributes to
nonattainment or interferes with maintenance of a NAAQS in another
State. 42 U.S.C. 7411(a)(2)(D). Although Title I, Part D of the Act
does not contain similar language, section 184 is within Title I, Part
D of the Act. Section 184 contains specific provisions to address
interstate transport of ozone and its precursors within the Ozone
Transport Region (OTR) (which includes both New Jersey and Stafford
County). This comment, however, is not relevant to the present action
because EPA is not taking action here to determine whether Virginia has
satisfied the requirements of CAA sections 110(a)(2)(D) or 184. EPA has
never interpreted the RACT provisions in section 172(c)(1) or 182(b)(2)
as requiring States to address interstate transport issues. Indeed, EPA
has expressly stated in the Phase 2 Rule that we ``believe [] that
section 172(c) is not the appropriate section of the CAA to address the
transport of ozone and ozone precursors * * *'' 70 FR at 71653. We
believe, based on the forgoing, that the section 182(b)(2) RACT
requirements also are not intended as a mechanism for addressing
interstate transport of pollutants.

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 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

[[Page 78195]]

any time invoke its authority under the CAA, 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 CAA
is likewise unaffected by this, or any, state audit privilege or
immunity law.

IV. Final Action

    EPA is approving the SIP revision submitted to EPA by the
Commonwealth of Virginia on April 21, 2008. This SIP revision contains
the requirements of RACT set forth by the CAA under the 8-hour ozone
NAAQS.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.

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 action 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. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action 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 20, 2009. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action 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, pertaining to the Stafford County RACT under the 8-
hour ozone NAAQS, 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, Incorporation by
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.

    Dated: December 11, 2008.
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 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 (e) is amended by adding
the entry for RACT under the 8-hour ozone NAAQS-Stafford County at the
end of the table to read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
    Name of non-regulatory SIP          Applicable           State                                Additional
             revision                geographic area    submittal date   EPA approval date       explanation
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
RACT under the 8-Hour NAAQS......  Stafford County....       4/21/2008  [Insert Federal
                                                                         Register page
                                                                         number where the
                                                                         document begins
                                                                         and date].
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 [FR Doc. E8-30212 Filed 12-19-08; 8:45 am]

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