[Federal Register Volume 70, Number 132 (Tuesday, July 12, 2005)]
[Rules and Regulations]
[Pages 39927-39931]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-13700]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[RO3-OAR-2005-VA-0009; FRL-7937-5]


Approval and Promulgation of State Air Quality Plans for 
Designated Facilities and Pollutants, Commonwealth of Virginia; Control 
of Municipal Waste Combustor Emissions From Small Existing Municipal 
Solid Waste Combustor Units

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve the Commonwealth 
of Virginia Department of Environmental Quality (DEQ) small municipal 
waste combustor plan (the plan) for implementing emission guideline 
(EG) requirements promulgated under the Clean Air Act (the Act). The 
plan establishes emission limits, monitoring, operating, and 
recordkeeping requirements for existing small MWC units with capacities 
of 35 to 250 tons per day (TPD) of municipal solid waste (MSW). An 
existing MWC unit is defined as one for which construction commenced on 
or before August 30, 1999.

DATES: This rule is effective September 12, 2005 without further 
notice, unless EPA receives adverse written comment by August 11, 2005. 
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 Regional Material in 
EDocket (RME) ID Number RO3-OAR-2005-VA-0009 by one of the following 
methods:
    A. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    B. Agency Web site: http://www.docket.epa.gov/rmepub/ RME, EPA's 
electronic public docket and comment system, is EPA's preferred method 
for receiving comments. Follow the on-line instructions for submitting 
comments.

[[Page 39928]]

    C. E-mail: http://[email protected].
    D. Mail: RO3-OAR-2005-VA-0009, Walter Wilkie, Chief, Air Quality 
Analysis, Mailcode 3AP22, U.S. Environmental Protection Agency, Region 
III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
    E. 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 RME ID No. RO3-OAR-2005-VA-
0009. EPA's policy is that all comments received will be included in 
the public docket without change, and may be made available online at 
http://www.docket.epa.gov/rmepub/, 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 RME, regulations.gov 
or e-mail. The EPA RME and the Federal regulations.gov Web sites are 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 RME or 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 
RME index at http://www.docket.epa.gov/rmepub/. 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 RME 
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: James B. Topsale, P.E., at (215) 814-
2190, or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On April 8, 1997, the United States Court of Appeals for the 
District of Columbia Circuit vacated the initial MWC unit rules, 
subparts Cb and Eb as they apply to MWC units with capacity to combust 
less than or equal to 250 tons per day (TPD) of municipal solid waste 
(MSW), consistent with their opinion in Davis County Solid Waste 
Management and Recovery District v. EPA, 101 F.3d 1395 (D.C. Cir. 
1996), as amended, 108 F.3d 1454 (D.C. Cir. 1997). As a result, 
subparts Cb and Eb were amended to apply only to MWC units with the 
capacity to combust more than 250 TPD of MSW per unit (i.e., large MWC 
units). Also, in response to the court's decision, on December 6, 2000, 
EPA promulgated new source performance standards (NSPS) applicable to 
new small MWCs (i.e., construction commenced after August 30, 1999) and 
EG applicable to existing small MWC units. The NSPS and EG are codified 
at 40 CFR part 60, subparts AAAA and BBBB, respectively. See 65 FR 
76350 and 76378. These subparts regulate the following air pollutants: 
Particulate matter, opacity, sulfur dioxide, hydrogen chloride, oxides 
of nitrogen, carbon monoxide, lead, cadmium, mercury, and dioxins and 
dibenzofurans.
    Under sections 111 and 129 of the Act, EG are not federally 
enforceable. However, section 129(b)(2) of the Act requires States to 
submit to EPA for approval State Plans that implement and enforce the 
EG. State Plans must be at least as protective as the EG, and become 
federally enforceable as a section 111(d)/129 plan upon approval by 
EPA. The procedures for adoption and submittal of State Plans are 
codified in 40 CFR part 60, subpart B.
    As required by Section 129(b)(3) of the Act, on January 31, 2003 
EPA promulgated a Federal Implementation Plan (FP) for small MWCs that 
commenced constructed on or before August 30, 1999. The FP is a set of 
maximum available control technology (MACT) requirements that implement 
the December 2000 MWC emission guidelines. The FP is applicable to 
those small existing MWC units not specifically covered by an approved 
State Plan under sections 111(d) and 129 of the CAA. It fills a Federal 
enforceability gap until State Plans are approved and ensures that the 
MWC units stay on track to complete, in an expeditious manner, 
pollution control equipment retrofits in order to meet the final 
statutory compliance date on or before of December 6, 2005.

II. Review of Virginia's MWC Plan

    EPA has reviewed the Virginia plan, submitted on September 2, 2003, 
for existing small MWC units in the context of the requirements of 40 
CFR part 60, and subparts B and BBBB, as amended. State Plans must 
include the following essential elements: (1) Identification of legal 
authority, (2) identification of mechanism for implementation, (3) 
inventory of affected facilities, (4) emissions inventory, (5) 
emissions limits, (6) compliance schedules, (7) testing, monitoring, 
recordkeeping, and reporting, (8) public hearing records, and (9) 
annual state progress reports on facility compliance.

A. Identification of Legal Authority

    Title 40 CFR 60.26 requires the plan to demonstrate that the State 
has legal authority to adopt and implement the emission standards and 
compliance schedules. The DEQ has demonstrated that it has the legal 
authority to adopt and implement the emission standards governing small 
MWC units. DEQ's legal authority is provided in the Air Pollution 
Control Law of Virginia, Title 10.1, Chapter 13, of the Code of 
Virginia. This authority is discussed in the plan narrative and a July 
1, 1998 letter from the Virginia Office of the Attorney General to the 
DEQ. This meets the requirements of 40 CFR 60.26.

B. Identification of Enforceable State Mechanisms for Implementing the 
Plan

    The subpart B provision at 40 CFR 60.24(a) requires that State 
Plans include emissions standards, defined in 40 CFR 60.21(f) as `` a 
legally enforceable regulation setting forth an allowable rate of 
emissions into the atmosphere, or prescribing equipment specifications 
for control of air pollution emissions.'' The Commonwealth of Virginia 
through the DEQ, has adopted State Air Pollution Control Board 
Regulations (Rule 4-46 and other supporting air program rules) to 
control small MWC emissions. Rule 4-46, Emission Standards for Small 
MWC, became effective on September 10, 2003. Other applicable and 
effective

[[Page 39929]]

supporting air program rules were identified and submitted to EPA on 
August 11, 2003 and April 6, 2004. These rules collectively met the 
requirement of 40 CFR 60.24(a) to have a legally enforceable emission 
standard.

C. Inventory of Affected MWC Units

    Title 40 CFR 60.25(a) requires the plan to include a complete 
source inventory of all affected facilities (i.e., existing MWC units 
with capacities of 35 to 250 TPD). The DEQ has identified three (3) 
affected facilities. The affected facilities are Galax, Hampton/NASA, 
and the Pentagon. An unknown affected facility is not exempt from 
applicable 111(d)/129 requirements because it is not listed in the 
source inventory.

D. Inventory of Emissions From Affected MWC Units

    Title 40 CFR 60.25(a) requires that the plan include an emissions 
inventory that estimates emissions of the pollutant regulated by the 
EG. Emissions from MWC units contain organics (dioxin/furans), metals 
(cadmium, lead, mercury, particulate matter, opacity), and acid gases 
(hydrogen chloride, sulphur dioxide, and nitrogen oxides). For each 
affected MWC facility, the DEQ plan contains MWC unit emissions rates 
estimates that are given in an acceptable format. This meets the 
emission inventory requirements of 40 CFR 60.25(a).

E. Emissions Limitations for MWC Units

    Title 40 CFR 60.24(c) specifies that the State plan must include 
emission standards that are no less stringent than the EG, except as 
specified in 40 CFR 60.24(f) which allows for less stringent emission 
limitations on a case-by-case basis if certain conditions are met. 
However, this exception clause is superseded by section 129(b)(2) of 
the Act which requires that state plans be ``at least as protective'' 
as the EG , in this case 40 CFR part 60, subpart BBBB. A review of the 
applicable Rule 4-46 emissions limitations show that all are ``at least 
as protective'' as those in the EG.

F. Compliance Schedules

    Under 40 CFR 60.24(c) and (e), a state plan must include an 
expeditious compliance schedule that owners and operators of affected 
MWC units must meet in order to comply with the requirements of the 
plan. Also, 40 CFR 60.1535 and beginning at section 60.1585, the EG 
stipulate increments of progress and compliance requirements for both 
class I and II facilities. Final compliance and installation of air 
pollution control equipment capable of meeting the Rule 4-46 emission 
requirements must be achieved by May 6, 2005 for class II units and 
November 6, 2005 for class I units. Other compliance schedule 
requirements (e.g., MWC closure) are stipulated in Rule 4-46. Class I 
units are those located at a MWC plant with an aggregate plant capacity 
greater than 250 TPD. Class II units are those located at a MWC plant 
with an aggregate plant capacity of 35 to 250 TPD. The Rule 4-46, 9 VAC 
5-40-6710, compliance schedule provision is consistent with the FP, 
part 62, subpart JJJ, section 62.15045 which establishes expeditious 
compliance dates. The state plan meets the applicable Federal 
requirements.

G. Testing, Monitoring, Recordkeeping, and Reporting Requirements

    The provisions of subpart B, 40 CFR 60.24(b) and 60.25(b), 
stipulate facility testing, monitoring recordkeeping and reporting 
requirements for state plans. Also, related EG provisions of 40 CFR 
60.1715 through section 60.1930 further define subpart BBBB 
requirements that state plans must include. Rule 4-46 meets the subpart 
B requirements of 40 CFR 60.24 and 60.25; and the related subpart BBBB 
provisions.

H. A Record of Public Hearing on the State Plan

    A public hearing on the plan was held June 18, 2003. Applicable 
portions of Rule 4-46 became effective on September 10, 2003. The state 
provided evidence of complying with public notice and other hearing 
requirements, including a record of public comments received. The DEQ 
has met the 40 CFR 60.23 requirement for a public hearing on the plan.

I. Annual State Progress Reports to EPA

    The DEQ will submit to EPA on an annual basis a report which 
details the progress in the enforcement of the plan in accordance with 
40 CFR 60.25. Accordingly, the DEQ will submit annual reports on 
progress in plan enforcement to EPA on an annual (calendar) basis, 
commencing with the first full report period after plan approval.

III. General Information Pertaining to Section 111(d)/129 Plan 
Submittals From Virginia

    In 1995, Virginia adopted legislation that provides, subject to 
certain conditions, for an environmental assessment (audit) 
``privilege'' for voluntary compliance evaluations performed by a 
regulated entity. The legislation further addresses the relative burden 
of proof for parties either asserting the privilege or seeking 
disclosure of documents for which the privilege is claimed. Virginia's 
legislation also provides, subject to certain conditions, for a penalty 
waiver for violations of environmental laws when a regulated entity 
discovers such violations pursuant to a voluntary compliance evaluation 
and voluntarily discloses such violations to the Commonwealth and takes 
prompt and appropriate measures to remedy the violations. Virginia's 
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and 
information about the content of those documents that are the product 
of a voluntary environmental assessment. The Privilege Law does not 
extend to documents or information (1) that are generated or developed 
before the commencement of a voluntary environmental assessment; (2) 
that are prepared independently of the assessment process; (3) that 
demonstrate a clear, imminent and substantial danger to the public 
health or environment; or (4) that are required by law.
    On January 12, 1998, the Commonwealth of Virginia Office of the 
Attorney General provided a legal opinion that states that the 
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege 
to documents and information ``required by law,'' including documents 
and information ``required by Federal law to maintain program 
delegation, authorization or approval,'' since Virginia must ``enforce 
Federally authorized environmental programs in a manner that is no less 
stringent than their Federal counterparts. * * *'' The opinion 
concludes that ``[r]egarding Sec.  10.1-1198, therefore, documents or 
other information needed for civil or criminal enforcement under one of 
these programs could not be privileged because such documents and 
information are essential to pursuing enforcement in a manner required 
by Federal law to maintain program delegation, authorization or 
approval.''
    Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that 
``[t]o the extent consistent with requirements imposed by Federal 
law,'' any person making a voluntary disclosure of information to a 
state agency regarding a violation of an environmental statute, 
regulation, permit, or administrative order is granted immunity from 
administrative or civil penalty. The Attorney General's January 12, 
1998 opinion states that the quoted language renders this statute 
inapplicable to enforcement of any Federally authorized

[[Page 39930]]

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 
section 111(d)/129 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

    Based upon the rationale discussed above and in further detail in 
the technical support document (TSD) associated with this action, EPA 
is approving the Virginia plan, excluding the non-applicable rule 
provisions, as identified in DEQ letters of August 11, 2003, April 6, 
2004, and April 18, 2005 to EPA. As a result of this EPA approval 
action, the FP is no longer applicable. The identified exclusions, for 
example, include Rule 4-46 provisions relating to odors, toxic 
pollutants (state only requirements), and MWC operator requirements 
under the Virginia Board for Waste Management Facility Operators. Also, 
with respect to certain plan decisions, EPA retains discretionary 
authority for several actions as listed in the September 2, 2003 plan 
narrative, section J, Discretionary Authority. As provided by 40 CFR 
60.28(c), any revisions to the Virginia plan or supporting regulations 
will not be considered part of the applicable plan until submitted by 
the Commonwealth of Virginia in accordance with 40 CFR 60.28(a) or (b), 
as applicable, and until approved by EPA in accordance with 40 CFR Part 
60, Subpart B, requirements.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. This action simply reflects already existing Federal 
requirement for state air pollution control agencies and existing small 
MWC units that are subject to the provisions of 40 CFR part 60, 
subparts B, and BBBB. 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 section 111(d)/129 plan 
should relevant adverse or critical comments be filed. This rule will 
be effective September 12, 2005 without further notice unless EPA 
receives adverse comments by August 11, 2005. If EPA receives adverse 
comments, EPA will publish a timely withdrawal in the Federal Register 
informing the public that the rule did not take effect. EPA will 
address all public comments in a subsequent final rule based on the 
proposed rule. The EPA will not institute a second comment period on 
this action. Any parties interested in commenting must do so at this 
time.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not 
have tribal implications because it will not have a substantial direct 
effect on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes, 
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). 
This action also does not have federalism implications because it does 
not have substantial direct effects on the States, on the relationship 
between the National Government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). 
This action merely approves a state rule implementing a Federal 
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.
    In reviewing section 111(d)/129 plan 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 111(d)/129 plan submission for 
failure to use VCS. It would thus be inconsistent with applicable law 
for EPA, when it reviews a 111(d)/129 plan submission, to use VCS in 
place of a 111(d)/129 plan 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 September 12,

[[Page 39931]]

2005. 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 Virginia section 111(d)/129 plan for 
small MWC units, may not be challenged later in proceedings to enforce 
its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 62

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Aluminum, Fertilizers, Fluoride, 
Intergovernmental relations, Paper and paper products industry, 
Phosphate, Reporting and recordkeeping requirements, Sulfur oxides, 
Sulfur acid plants, Waste treatment and disposal.

    Dated: June 29, 2005.
Donald S. Welsh,
Regional Administrator, Region III.

0
40 CFR part 62 is amended as follows:

PART 62--[AMENDED]

0
1. The authority citation for Part 62 continues to read as follows:

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

Subpart VV--Virginia

0
2. A new center heading, after Sec.  62.11627, consisting of Sec. Sec.  
62.11635, 62.11636, and 62.11637 is added to read as follows:

Emissions From Existing Small Municipal Waste Combustor (MWC) Units--
Section 111(d)/129 Plan


Sec.  62.11635  Identification of plan.

    Section 111(d)/129 plan for small MWC units with capacities 35 to 
250 tons per day, and the associated Virginia Air Pollution Control 
Board Regulations (Rule 4-46, and other supporting rules identified in 
the plan), submitted to EPA on September 2, 2003, including 
supplemental information submitted on August 11 and September 30, 2003; 
April 6, 2004; and April 18, 2005.


Sec.  62.11636  Identification of sources.

    The affected facility to which the plan applies is each small MWC 
unit for which construction commenced on or before August 30, 1999.


Sec.  62.11637  Effective date.

    The effective date of the plan for small MWC units is September 12, 
2005.

[FR Doc. 05-13700 Filed 7-11-05; 8:45 am]
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