[Federal Register Volume 84, Number 236 (Monday, December 9, 2019)]
[Rules and Regulations]
[Pages 67196-67200]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-26403]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2019-0277; FRL-10002-86-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Source-Specific Reasonably Available Control Technology 
Determinations for 2008 Ozone National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is approving three 
state implementation plan (SIP) revisions submitted by the Commonwealth 
of Virginia. These revisions address reasonably available control 
technology (RACT) requirements under the 2008 ozone national ambient 
air quality standard (NAAQS) for three facilities in Northern Virginia 
through source-specific determinations. This action is being taken 
under the Clean Air Act (CAA).

DATES: This final rule is effective on January 8, 2020.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2019-0277. All documents in the docket are listed on 
the https://www.regulations.gov website. Although listed in the index, 
some information is not publicly available, e.g., 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 and will be publicly available only in hard 
copy form. Publicly available docket materials are available through 
https://www.regulations.gov, or please contact the person identified in 
the For Further Information Contact section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: Emlyn V[eacute]lez-Rosa, Planning & 
Implementation Branch (3AD30), Air & Radiation Division, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103. The telephone number is (215) 814-
2038. Ms. V[eacute]lez-Rosa can also be reached via electronic mail at 
velez-rosa.emlyn@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    On August 1, 2019 (84 FR 37607), EPA published a notice of proposed 
rulemaking (NPRM) for the Commonwealth of Virginia. In the NPRM, EPA 
proposed approval of three separate SIP revisions from Virginia 
addressing RACT under the CAA for the 2008 ozone NAAQS for three 
facilities in Northern Virginia. The formal SIP revisions were 
submitted by the Virginia Department of Environmental Quality (VADEQ) 
on February 1, 14, and 15, 2019 and address the following facilities: 
Possum Point Power Station, Covanta Fairfax, and Covanta Alexandria/
Arlington.
    RACT is important for reducing oxides of nitrogen (NOX) 
and volatile organic compounds (VOC) emissions from major stationary 
sources within areas not meeting the ozone NAAQS. Since the 1970's, EPA 
has consistently defined ``RACT'' as the lowest emission limit that a 
particular source is capable of meeting by the application of the 
control technology that is reasonably available considering 
technological and economic feasibility.\1\ RACT is applicable to ozone 
nonattainment areas which are classified as moderate or above, or any 
areas located within the Ozone Transport Region (OTR). General RACT 
requirements are set forth in section 172(c)(1) of the CAA, while ozone 
specific requirements are found in sections 182 and 184 of the CAA.
---------------------------------------------------------------------------

    \1\ See December 9, 1976 memorandum from Roger Strelow, 
Assistant Administrator for Air and Waste Management, to Regional 
Administrators, ``Guidance for Determining Acceptability of SIP 
Regulations in Non-Attainment Areas,'' and also 44 FR 53762; 
September 17, 1979.
---------------------------------------------------------------------------

    On March 12, 2008, EPA revised the 8-hour ozone standards, by 
lowering the standard to 0.075 parts per million (ppm) averaged over an 
8-hour period (2008 ozone NAAQS). See 73 FR 16436. Under the 2008 ozone 
NAAQS, only the Northern portion of Virginia is subject to RACT due to 
its location in the OTR, as there are no moderate nonattainment areas 
in Virginia under the standard. The OTR portion of Virginia consists of 
the Arlington County, Fairfax County, Loudoun County, Prince William 
County, Alexandria City, Fairfax City, Falls Church City, Manassas 
City, Manassas Park City, and Strafford County. The three facilities 
which are the subject of this rulemaking action are located in Northern 
Virginia.

II. Summary of SIP Revision and EPA Analysis

    Virginia's February 1, 14, and 15, 2019 SIP revisions address 
NOX and/or VOC RACT for the following facilities: Virginia 
Electric and Power Company--Possum Point Power Station, Covanta 
Alexandria/Arlington, Inc., and Covanta Fairfax, Inc. VADEQ is adopting 
as part of these SIP revisions additional NOX control 
requirements for these three facilities to meet RACT under the 2008 
ozone NAAQS, all of which are implemented via federally enforceable 
permits issued by VADEQ. These RACT permits, as listed on Table 1, have 
been submitted as part of each SIP revision for EPA's approval into the 
Virginia SIP under 40 CFR 52.2420(d).
    Virginia's source specific RACT determinations include an 
evaluation of NOX and/or VOC controls that are reasonably 
available for the affected emissions units at each facility and its 
determination of which control requirements satisfy RACT. VADEQ 
submitted federally enforceable permits with the purpose of 
implementing the requirements of 9VAC5, Chapter 40 (9VAC5-40), sections 
7400, 7420, and 7430.

[[Page 67197]]



                      Table 1--Facilities With Proposed Source-Specific RACT Determinations
----------------------------------------------------------------------------------------------------------------
                                                                                 RACT permit       SIP submittal
          Facility name                Source type          Facility ID        (effective date)        date
----------------------------------------------------------------------------------------------------------------
Virginia Electric and Power        Electric generation  Registration No.     Permit to Operate            2/1/19
 Company--Possum Point Power        utility.             70225.               (1/31/19).
 Station.
Covanta Fairfax, Inc.............  Municipal waste      Registration No.     Permit to Operate           2/14/19
                                    combustor.           71920.               (2/8/19).
Covanta Alexandria/Arlington, Inc  Municipal waste      Registration No.     Permit to Operate           2/15/19
                                    combustor.           71895.               (2/8/19).
----------------------------------------------------------------------------------------------------------------

    As part of the February 1, 2019 SIP revision, VADEQ is addressing 
RACT for the Possum Point Power Station, an electrical generation 
utility (EGU) facility located in Prince William County owned and 
operated by Virginia Electric and Power Company. This EGU facility is 
considered a major source of NOX and VOC. VADEQ has adopted 
additional NOX RACT requirements for Possum Point Power 
Station's electric generating boiler ES-5 as part of the facility's 
Permit to Operate issued on January 31, 2019 and included for approval 
into the SIP. Given the potential retirement of boiler ES-5, VADEQ 
determined RACT for boiler ES-5 based on the two possible operating 
scenarios: (1) The installation and operation of selective non-
catalytic reduction (SNCR) by June 1, 2019, in the scenario that the 
unit remains operational after such date; or (2) the retirement of the 
unit by June 1, 2021, in the scenario that the unit is or will be 
retired.
    As part of the February 1, 2019 SIP revision, VADEQ also 
recertified applicable NOX and VOC controls for the other 
two electric generating boilers (ES-3 and ES-4) at Possum Point Power 
Station as well as VOC controls for boiler ES-5, all of which were 
previously approved as RACT on a source-specific basis. VADEQ also 
determined that additional VOC controls are not economic or technically 
feasible for this facility, given the size and VOC emissions from 
individual emissions units.
    As part of the February 14, 2019 and February 15, 2019 SIP 
revisions, VADEQ is addressing NOX RACT for two municipal 
waste combustion (MWC) facilities with energy recovery: Covanta 
Fairfax, Inc. (Covanta Fairfax) and Covanta Alexandria/Arlington, Inc. 
(Covanta Alexandria/Arlington). These MWC facilities are located in 
Lorton, in Fairfax County and the City of Alexandria, respectively, and 
are considered major sources of NOX. VADEQ determined the 
following control measures as NOX RACT for each MWC unit at 
Covanta Fairfax and Covanta Alexandria/Arlington: the installation and 
operation of Covanta's proprietary low NOX combustion 
system, the operation (and optimization as needed) of the existing 
SNCR, a daily NOX average limit of 110 parts per million, 
volumetric dry (ppmvd) corrected at 7% oxygen (O2), and an 
annual NOX average limit of 90 ppmvd at 7% O2. 
The NOX RACT control requirements for the four MWC units at 
Covanta Fairfax have been adopted as part of the facility's Permit to 
Operate issued on February 8, 2019; while those for the three MWC units 
at Covanta Alexandria/Arlington have been adopted as part of the 
facility's Permit to Operate issued by on February 8, 2019.
    EPA believes that VADEQ has considered and adopted reasonably 
available NOX and/or VOC controls for each of these 
facilities. EPA finds that the additional NOX control 
requirements adopted by VADEQ in the respective federally enforceable 
permits are adequate to meet RACT for these sources. EPA also finds 
that re-certification of existing source-specific requirements for 
Possum Point Station is adequate to meet RACT. Further, EPA determines 
that the additional NOX RACT control requirements adopted 
for each facility are more stringent than the applicable SIP-approved 
NOX RACT requirements, so that approval of these permits 
into the SIP would be consistent with section 110(l) of the CAA. Other 
specific requirements of VADEQ's source-specific determinations and the 
rationale for EPA's proposed action are explained in the NPRM and the 
related Technical Support Document (TSD) and will not be stated here.

III. Public Comments and EPA Response

    EPA received three comments on the August 1, 2019 NPRM. One comment 
EPA considers to not be adverse to this action and does not require a 
response. The other two comments each contend that EPA should not 
approve Virginia's RACT SIP, alleging effects of this rulemaking action 
on nuclear power facilities. A summary of the comments and EPA's 
response is discussed in this Section. A copy of the comments can be 
found in the docket for this rulemaking action.
    Comment: The first commenter claims that EPA should not approve 
Virginia's RACT SIP determinations because it would make the State's 
nuclear power plants too expensive and prevent the development of the 
State's commercial nuclear program.
    EPA Response: The commenter did not indicate how the imposition of 
RACT controls on the three facilities that are the subject of this 
rulemaking would negatively affect Virginia's nuclear power program. 
EPA finds that the subject of the effects of these SIP revisions on 
Virginia-based nuclear power is irrelevant to this rulemaking action. 
The SIP revisions addressed in this rulemaking evaluate air pollution 
controls for NOX and VOC at three facilities in Northern 
Virginia, none of which are nuclear power plants.
    Comment: The second commenter claims that Virginia's RACT 
determination for Possum Point lacks adequate information and that 
EPA's rulemaking action is unsupported, because EPA ``ignored the fact 
that at least a dozen other large power plants including those of the 
coal-dependent Appalachian states of Virginia, West Virginia, and 
Kentucky, have similar nuclear waste storage capacity.'' The commenter 
also argues that EPA needs to evaluate ``the cost of other utilities 
and other power generating utilities when forcing costly controls on 
plants such as this'' as well as ``the increased cost of ratepayers 
when forcing states to evaluate expensive controls on publicly owned 
utilities like in Virginia.''
    EPA Response: The commenter does not explain how power plants with 
nuclear storage capacity are related to this rulemaking action, nor 
identify any facilities of concern to allow EPA to further assess this 
claim. As indicated earlier, the SIP revisions addressed in this 
rulemaking evaluate air pollution controls for NOX and VOC 
at three facilities in Northern Virginia, none of

[[Page 67198]]

which are nuclear power plants. In particular, Possum Point Power 
Station is a thermal power plant in which electricity is produced by 
converting heat energy to electrical power through the combustion of 
natural gas in turbines and boilers. In addition to the topic of 
nuclear power being irrelevant, EPA also notes that the commenter does 
not provide in its comment which costs EPA should have evaluated as 
part of this rulemaking action and for which ``utilities'' this was 
needed.
    EPA disagrees with the assertions that Virginia's RACT 
determination for Possum Point lacks adequate information and that 
EPA's proposed rulemaking action to approve this determination is 
unsupported. The commenter provided no new or additional data for EPA 
to evaluate in support of its allegations and does not explain how 
``increased cost to the rate payer'' should be evaluated as a factor 
beyond the statutory and regulatory factors EPA cited in the TSD for 
establishing RACT. EPA continues to rely upon the data cited in the 
NPRM and in the statutory and regulatory factors established for 
evaluating RACT. See, e.g., International Fabricare Institute v. 
E.P.A., 972 F.2d 384 (D.C. Cir. 1992). (The Administrative Procedures 
Act does not require that EPA change its decision based on ``comments 
consisting of little more than assertions that in the opinions of the 
commenters the agency got it wrong,'' when submitted with no 
accompanying data.) As set forth in the NPRM, EPA has determined that 
the February 1, 2019 SIP revision includes adequate information to 
support Virginia's RACT determination for this facility. As part of the 
February 1, 2019 SIP revision, the Commonwealth of Virginia evaluated 
the technical and economic feasibility of installing and operating 
additional air pollution control devices of NOX and/or VOC 
for each emissions unit at Possum Point. EPA believes that the 
Commonwealth provided sufficient assurances as part of the February 1, 
2019 SIP revision to support its source-specific RACT determination for 
Possum Point.
    EPA's evaluation of Virginia's February 1, 2019 SIP revision and 
the rationale for taking rulemaking action on this submission was 
discussed in detail in the NPRM and accompanying TSD. EPA's decision to 
approve the RACT determination for Possum Point based on that 
information is not changed by these unsupported comments.

IV. Final Action

    EPA finds that Virginia's SIP revisions submitted on February 1, 
14, and 15, 2019 addressing source-specific RACT for Possum Point Power 
Station, Covanta Fairfax, and Covanta Alexandria/Arlington, are 
adequate to meet RACT requirements set forth under the CAA for the 2008 
ozone NAAQS. EPA is approving the February 1, 14, and 15, 2019 
submittals as revisions to the Commonwealth of Virginia SIP to satisfy 
sections 172(c)(1), 182(b)(2)(C), 182(f), and 184(b)(1)(B) for 
implementation of the 2008 ozone NAAQS.

V. 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 that: (1) Are generated or developed 
before the commencement of a voluntary environmental assessment; (2) 
are prepared independently of the assessment process; (3) demonstrate a 
clear, imminent and substantial danger to the public health or 
environment; or (4) 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 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.

VI. Incorporation by Reference

    In this document, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference of three 
federally enforceable permits, each addressing NOX and/or 
VOC RACT under the 2008 ozone NAAQS for a major NOX and/or 
VOC source as discussed in section II of this preamble. EPA has made, 
and will continue to make, these materials

[[Page 67199]]

generally available through www.regulations.gov and at the EPA Region 
III Office (please contact the person identified in the FOR FURTHER 
INFORMATION CONTACT section of this preamble for more information). 
Therefore, these materials have been approved by EPA for inclusion in 
the SIP, have been incorporated by reference by EPA into that plan, are 
fully federally enforceable under sections 110 and 113 of the CAA as of 
the effective date of the final rulemaking of EPA's approval, and will 
be incorporated by reference in the next update to the SIP 
compilation.\2\
---------------------------------------------------------------------------

    \2\ 62 FR 27968 (May 22, 1997).
---------------------------------------------------------------------------

VII. 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 CAA 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 Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866.
     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 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, 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).
    The SIP is not approved to apply on any Indian reservation land as 
defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian 
tribe has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the rule does not have tribal implications and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000).

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. Section 804, however, exempts from section 801 the 
following types of rules: Rules of particular applicability; rules 
relating to agency management or personnel; and rules of agency 
organization, procedure, or practice that do not substantially affect 
the rights or obligations of non-agency parties. 5 U.S.C. 804(3). 
Because this is a rule of particular applicability, EPA is not required 
to submit a rule report regarding this action under section 801.

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by February 7, 2020. 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 addressing source-specific RACT under the 2008 
ozone NAAQS for three facilities in Northern 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, Incorporation by 
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: November 20, 2019.
Cosmo Servidio,
Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart VV--Virginia

0
2. In Sec.  52.2420, the table in paragraph (d) is amended by adding 
entries for ``Virginia Electric and Power Company (VEPCO)--Possum Point 
Power Station'', ``Covanta Alexandria/Arlington, Inc.'', and ``Covanta 
Fairfax, Inc.'' at the end of the table to read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (d) * * *

[[Page 67200]]



                                    EPA-Approved Source Specific Requirements
----------------------------------------------------------------------------------------------------------------
                                     Permit/order or         State                              40 CFR part 52
           Source name               registration No.   effective date   EPA approval date         citation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Virginia Electric and Power        Registration No.           01/31/19  12/09/19, [Insert    Sec.   52.2420(d);
 Company (VEPCO)--Possum Point      70225.                               Federal Register     RACT for 2008
 Power Station.                                                          citation].           ozone NAAQS.
Covanta Alexandria/Arlington, Inc  Registration No.           02/14/19  12/09/19, [Insert    Sec.   52.2420(d);
                                    71920.                               Federal Register     RACT for 2008
                                                                         citation].           ozone NAAQS.
Covanta Fairfax, Inc.............  Registration No.           02/08/19  12/09/19, [Insert    Sec.   52.2420(d);
                                    71895.                               Federal Register     RACT for 2008
                                                                         citation].           ozone NAAQS.
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2019-26403 Filed 12-6-19; 8:45 am]
BILLING CODE 6560-50-P


