[Federal Register Volume 69, Number 73 (Thursday, April 15, 2004)]
[Rules and Regulations]
[Pages 19943-19946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-8581]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[VA001-1001a; FRL-7648-4]
Approval of Section 112(l) Authority for Hazardous Air
Pollutants; Equivalency by Permit Provisions; National Emission
Standards for Hazardous Air Pollutants From the Pulp and Paper
Industry; Commonwealth of Virginia
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The EPA is approving a request from the Commonwealth of
Virginia's Department of Environmental Quality (DEQ) for authority to
implement and enforce state permit terms and conditions in place of
those of the National Emission Standards for Hazardous Air Pollutants
(NESHAP) for the Pulp and Paper Industry, with respect to the
operations of International Paper Company's Franklin Mill, located in
Franklin, Virginia. Thus, the EPA is hereby granting the Virginia DEQ
the authority to implement and enforce alternative requirements in the
form of Clean Air Act (CAA) Title V permit terms and conditions after
EPA has approved the State's alternative requirements. The EPA is
approving this request because it has found that the Virginia DEQ has
satisfied the requirements for approval set forth at 40 CFR part 63,
subpart E, entitled, ``Approval of State Programs and Delegation of
Federal Authorities.''
DATES: This rule is effective on June 14, 2004 without further notice,
unless EPA receives adverse written comment by May 6, 2004. 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 VA001-1001, by one of
the following methods:
A. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the on-line instructions for submitting comments.
B. E-mail: [email protected].
C. Mail: David J. 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. VA001-1001.
EPA's policy is that all comments received will be included in the
public docket without change, 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 regulations.gov or e-
mail. The federal 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
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.
Copies of all comments should also be sent to the Virginia
Department of Environmental Quality. Copies of written comments should
be sent to John M. Daniel, Jr., Director, Air Division, Virginia
Department of Environmental Quality, P.O. Box 10009, Richmond, Virginia
23240. Copies of electronic comments should be sent to jmdaniel@
deq.state.va.us. Copies of the documents relevant to this action are
available 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; and the Virginia
Department of Environmental Quality, 629 East Main Street, Richmond,
Virginia 23219.
FOR FURTHER INFORMATION CONTACT: Ray Chalmers, (215) 814-2061, or by e-
mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
Pursuant to section 112 of the Clean Air Act (CAA), the
Environmental Protection Agency (EPA) promulgates 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. Sec. 63.440 through 63.459. (See, 63 FR 18504.)
International Paper Company operates a pulp and paper mill called the
Franklin Mill, located in Franklin, Virginia, which is subject to the
requirements of this NESHAP.
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 CAA section 112 rules,
emission standards, or requirements. EPA's approval of State and local
rules or programs under section 112(l) is governed by regulations found
at 40 CFR part 63, subpart E. (See, 65 FR 55810, dated September 14,
2000). Under the provisions of subpart E found at 40 CFR 63.94, a State
or local air pollution control agency may seek approval, for affected
sources permitted by the State or local agency under a CAA Title V
permitting program developed pursuant to the EPA regulations found at
40 CFR part 70, of State or local CAA Title V permit terms and
conditions to be implemented and enforced in lieu of specified existing
and future Federal CAA section 112 rules, emissions standards, or
requirements. This option is referred to as the equivalency by permit
(EBP) option. To receive EPA approval using this option, the State or
local agency must meet the requirements of 40 CFR 63.91 and 63.94.
Approval of alternative requirements under the EBP process
comprises three steps. The first step is EPA granting ``up-front
approval'' of a State's EBP program. (See, 40 CFR 63.94(a) and (b).)
The second step is EPA review and approval of the State's proposed
alternative CAA section 112 requirements in the form of pre-draft
permit terms and conditions. (See, 40 CFR 63.94(c) and (d).) The third
step is incorporation of the approved pre-draft permit terms and
conditions into a specific CAA Title V permit and the CAA Title V
permit issuance process itself. (See, 40 CFR 63.94(e).)
The first step, obtaining EPA's ``up-front approval'' of a State's
EBP program, enables EPA to ensure that: (1) A State meets the criteria
at 40 CFR 63.91(d) for up-front approval common to all approval
options; (2) a legal
[[Page 19944]]
foundation exists for a State to replace the otherwise applicable
Federal section 112 requirements with alternative, Federally
enforceable requirements that will be reflected in final CAA Title V
permit terms and conditions; and, (3) the specific source(s) and
Federal emission standard(s) for which a State will be accepting
delegation under the EBP program are clearly specified.
The second step, having EPA review and approve the State's
alternative CAA section 112 requirements, provides EPA with an
opportunity to ensure that the State's proposed pre-draft CAA Title V
permit terms and conditions reflect all of the requirements of the
otherwise applicable Federal requirements and are equivalent to those
requirements. The approval criteria used by EPA are set forth at 40 CFR
63.94(d). If the EPA finds that the pre-draft CAA Title V permit terms
and conditions submitted by the State meet the criteria of paragraph
(d), EPA approves the State's alternative requirements (by approving
the pre-draft permit terms and conditions) and notifies the State in
writing of the approval.
The third step, requiring incorporation of the approved pre-draft
permit terms and conditions into a specific CAA Title V permit and the
CAA Title V permit issuance process itself, serves to make the
requirements legally effective. EPA's final approval of the State's
proposed alternative requirements that substitute for the Federal
standard does not occur until the completion of step three.
On November 21, 2003 the Virginia DEQ requested delegation of
authority to implement and enforce State CAA Title V permit terms and
requirements for International Paper Company's Franklin Mill as an
alternative to those of the NESHAP for the Pulp and Paper Industry
found at 40 CFR part 63, subpart S. The Virginia DEQ states in its
request that it intends for the submittal to fulfill only the
requirements of step one of the EBP process, pertaining to obtaining
``up-front approval'' of its program. The Virginia DEQ explains that it
will later fulfill steps two and three of the EBP process by submitting
substitute CAA Title V operating permit terms and conditions for EPA
review and approval, and then proceeding with the CAA Title V permit
issuance process. The Virginia DEQ sought this authority pursuant to
the provisions of 40 CFR 63.94 and 63.91, and the Virginia DEQ
submitted information addressing the requirements of those sections.
II. Analysis of State's Submittal
EPA has reviewed the Virginia DEQ's submittal and has concluded
that the Virginia DEQ meets the requirements for ``up-front approval''
of its EBP program which are specified at 40 CFR 63.94(b) and 63.91(d).
The requirements a State or local agency must meet can be summarized as
follows: (1) Identify the source(s) for which the State seeks authority
to implement and enforce alternative requirements; (2) request
delegation (or have delegation) for any remaining sources required to
be permitted by the State under 40 CFR part 70 that are in the same
category as the source(s) for which it wishes to establish alternative
requirements; (3) identify all existing and future CAA section 112
emission standards for which the State is seeking authority to
implement and enforce alternative requirements; (4) demonstrate that
the State has an approved CAA Title V operating permits program that
permits the affected sources; and, (5) demonstrate that the State meets
the general approval criteria set forth at 40 CFR 63.91(d).
EPA lists each requirement below and after each requirement
explains its reasons for concluding that the Virginia DEQ meets the
requirement:
A. Identify the Source(s) for Which the State Is Seeking Authority To
Implement and Enforce Alternative Requirements
The Virginia DEQ identified International Paper Company's Franklin
Mill, a pulp and paper mill located in Franklin, Virginia, as the
source for which it is seeking authority to implement and enforce
alternative requirements. According to the Virginia DEQ, International
Paper Company's Franklin Mill is one of four operating pulp and paper
mills in Virginia subject to 40 CFR part 63, subpart S. The Virginia
DEQ reports that none of the other companies operating pulp and paper
mills in Virginia have contacted the State regarding an interest in the
EBP process.
B. Request or Have Delegation for Any Remaining Sources Required To Be
Issued CAA Title V Permits by the State and That Are in the Same
Category as the Source(s) for Which It Seeks To Establish Alternative
Requirements
The Virginia DEQ is currently delegated the authority to implement
and enforce the Federal requirements of 40 CFR part 63, subpart S for
all pulp and paper mills. Subpart S applies to ``the owner or operator
of processes that produce pulp, paper, or paperboard; that are located
at a plant site that is a major source. * * *'' (See, 40 CFR 63.440.)
On January 26, 1999, EPA announced in the Federal Register that it had
delegated to the Virginia DEQ the authority to implement and enforce
EPA's NESHAP standards for all affected sources of hazardous air
pollutants (HAPs), as defined in 40 CFR part 63, for all source
categories which are located at major sources. (See, 64 FR 3938.) EPA
also delegated to the Virginia DEQ the authority to implement and
enforce all future EPA NESHAP standards applicable to such sources, on
the condition that the Virginia DEQ legally adopt such new standards
with only approved wording changes and that the Virginia DEQ provide
notice to EPA of such adoption. The Virginia DEQ subsequently adopted
additional standards, and notified EPA that it had adopted these
additional standards. The additional standards that the State adopted
included 40 CFR part 63, subpart S.
C. Identify All Existing and Future Federal Section 112 Rules for Which
the State Is Seeking Authority To Implement and Enforce Alternative
Requirements
In its November 21, 2003 submittal, the Virginia DEQ requested only
the authority to implement and enforce State permit requirements for
International Paper Company's Franklin Mill as alternatives to the
Federal requirements applicable to that Mill found at 40 CFR part 63,
subpart S. The Virginia DEQ confirmed that there are no other existing
and future Federal CAA section 112 rules for which the State is seeking
authority to implement and enforce alternative requirements.
D. Demonstrate That the State Has an Approved CAA Title V Permits
Program and That the Program Permits the Affected Source(s)
EPA granted final full approval to Virginia's CAA Title V operating
permits program on December 4, 2001 (66 FR 62961), and under this
approved program the Virginia DEQ has the authority to issue CAA Title
V permits to all major stationary sources. In its November 21, 2003
submittal, the Virginia DEQ confirmed that International Paper
Company's Franklin Mill is a CAA Title V source and that it is subject
to the State's CAA Title V permits program. The Virginia DEQ noted the
International Paper Company had submitted a CAA Title V permit
application, and that the Virginia DEQ was reviewing this application.
[[Page 19945]]
E. Demonstrate That the State Meets the General Approval Criteria Found
at 40 CFR Section 63.91(d)
The provisions of 40 CFR 63.91(d) specify that ``Interim or final
CAA Title V program approval will satisfy the criteria set forth in
Sec. 63.91(d), up-front approval criteria.'' As discussed in item D.
above, EPA has fully approved Virginia's CAA Title V operating permits
program.
F. Virginia's Voluntary Environmental Assessment Privilege Law
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, 1997, 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,
1997 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
CAA Title V 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.
III. Final Action
EPA is granting the Virginia DEQ ``up-front'' approval of an EBP
program under which the Virginia DEQ may establish and enforce
alternative State requirements for International Paper Company's
Franklin Mill in lieu of those of the NESHAP for the Pulp and Paper
Industry found at 40 CFR part 63, subpart S. The Virginia DEQ may only
establish alternative requirements for the Franklin Mill which are
equivalent to and at least as stringent as the otherwise applicable
Federal requirements. (See, 40 CFR 63.94(d).) The VA DEQ must, in order
to establish alternative requirements for the Franklin Mill under its
EPA approved EBP program: (1) Submit to EPA for review pre-draft CAA
Title V permit terms specifying alternative requirements which are at
least as stringent as the otherwise applicable Federal requirements,
(2) obtain EPA's written approval of the alternative pre-draft CAA
Title V permit requirements, and (3) issue a CAA Title V permit for the
Franklin Mill which contains the approved alternative requirements.
(See, 40 CFR 63.94(c) and (e).) Until EPA has approved the alternative
permit terms and conditions and the Virginia DEQ has issued a final CAA
Title V permit incorporating them, International Paper Company's
Franklin Mill will remain subject to the Federal NESHAP requirements
found at 40 CFR part 63, subpart S.
EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comment. 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 if adverse comments are filed. This rule
will be effective on June 14, 2004 without further notice unless EPA
receives adverse comment by May 6, 2004. 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.
IV. 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
[[Page 19946]]
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
standard, 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 is not economically significant.
EPA's role in reviewing this submittal is to approve a State
request for authority to establish State permit terms and conditions to
be implemented and enforced in lieu of specified existing and future
Federal rules, emissions standards or requirements promulgated under
CAA section 112, for those affected sources permitted by the State
under a program meeting the requirements of CAA part 70, provided that
the request meets the criteria of the CAA. In this context, in the
absence of a prior existing requirement for a State to use voluntary
consensus standards (VCS), EPA has no authority to disapprove a State's
submission for failure to use VCS. It would thus be inconsistent with
applicable law for EPA, in reviewing this submission, to use VCS in
place of a State submission that otherwise satisfies the provisions of
the CAA. Thus, the requirements of section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) 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. Section 804 exempts from section 801 the following types
of rules: (1) Rules of particular applicability; (2) rules relating to
agency management or personnel; and (3) 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). EPA is not required
to submit a rule report regarding today's action under section 801
because this is a rule of particular applicability establishing source-
specific requirements for International Paper Company's Franklin Mill
located in Franklin, Virginia.
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 June 14, 2004. 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 granting the Virginia DEQ ``up-front''
approval of an EBP program under which the Virginia DEQ may establish
and enforce alternative State requirements for International Paper
Company's Franklin Mill in lieu of those of the NESHAP for the Pulp and
Paper Industry found at 40 CFR part 63, subpart S may not be challenged
later in proceedings to enforce its requirements. (See section
307(b)(2).)
List of Subjects in 40 CFR Part 63
Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Intergovernmental
relations, Reporting and recordkeeping requirements.
Dated: April 6, 2004.
Thomas Voltaggio,
Acting Regional Administrator, Region III.
0
40 CFR part 63 is amended as follows:
PART 63--[AMENDED]
0
1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart E--Approval of State Programs and Delegation of Federal
Authorities
0
2. Section 63.99 is amended by adding paragraph (a)(46)(iii) to read as
follows:
Sec. 63.99 Delegated Federal authorities.
(a) * * *
(46) Virginia
* * * * *
(iii) EPA has granted the Virginia Department of Environmental
Quality (DEQ) ``up-front'' approval to implement an Equivalency by
Permit (EBP) program under which the Virginia DEQ may establish and
enforce alternative State requirements for International Paper
Company's Franklin Mill in lieu of those of the National Emissions
Standard for Hazardous Air Pollutants (NESHAP) for the Pulp and Paper
Industry found at 40 CFR part 63, subpart S. The Virginia DEQ may only
establish alternative requirements for the Franklin Mill which are
equivalent to and at least as stringent as the otherwise applicable
Federal requirements. The VA DEQ must, in order to establish
alternative requirements for the Franklin Mill under its EPA approved
EBP program: (1) Submit to EPA for review pre-draft Clean Air Act (CAA)
Title V permit terms specifying alternative requirements which are at
least as stringent as the otherwise applicable Federal requirements,
(2) obtain EPA's written approval of the alternative pre-draft CAA
Title V permit requirements, and (3) issue a CAA Title V permit for the
Franklin Mill which contains the approved alternative requirements.
Until EPA has approved the alternative permit terms and conditions and
the Virginia DEQ has issued a final CAA Title V permit incorporating
them, International Paper Company's Franklin Mill will remain subject
to the Federal NESHAP requirements found at 40 CFR part 63, subpart S.
* * * * *
[FR Doc. 04-8581 Filed 4-14-04; 8:45 am]
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