[Federal Register Volume 72, Number 155 (Monday, August 13, 2007)]
[Rules and Regulations]
[Pages 45165-45169]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-15587]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2006-0060; FRL-8452-6]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; State Implementation Plan Revision Variance for International
Paper, Franklin Paper Mill, Virginia
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is taking direct final action to approve revisions to the
Commonwealth of Virginia State Implementation Plan (SIP). This action
will approve the SIP revision request submitted by the Commonwealth of
Virginia, consisting of the variance regulations adopted by Virginia
for the International Paper, Franklin Paper Mill facility. The variance
regulations provide regulatory relief from compliance with state
regulations governing new source review for the implementation of the
International Paper, Franklin Paper Mill innovation project. In lieu of
compliance with these regulatory requirements, the variance requires
the facility to comply with site-wide emission caps. EPA is approving
this revision to the Commonwealth of Virginia State Implementation Plan
in accordance with the requirements of the Clean Air Act.
DATES: This rule is effective on October 12, 2007 without further
notice, unless EPA receives adverse written comment by September 12,
2007. If EPA receives such comments, it will publish a timely
withdrawal of the direct final rule in the Federal Register and inform
the public that the rule will not take effect.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2006-0060 by one of the following methods:
A. www.regulations.gov. Follow the on-line instructions for
submitting comments.
B. E-mail: [email protected].
C. Mail: EPA-R03-OAR-2006-0060, David Campbell, Chief, Permits and
Technical Assessment Branch, Mailcode 3AP11, U.S. Environmental
Protection Agency, Region III, 1650 Arch Street, Philadelphia,
Pennsylvania 19103.
D. Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2006-0060. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or e-mail.
The www.regulations.gov 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 www.regulations.gov,
your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD-ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in www.regulations.gov or
in hard copy during normal business hours at the Air Protection
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch
Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal
are available at the Virginia Department of Environmental Quality, 629
East Main Street, Richmond, Virginia 23219.
FOR FURTHER INFORMATION CONTACT: Sharon McCauley, (215) 814-3376, or by
e-mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
International Paper operates a pulp and paper mill located in
Franklin, Virginia. International Paper is a member of EPA's voluntary
National Environmental Performance Track Program and the Virginia
Department of Environmental Quality's (VADEQ) Environmental Excellence
Program. International Paper had entered into a partnership with the
U.S. EPA and the VADEQ to implement an innovative approach to meeting
environmental regulations in a more cost-effective manner.
International Paper submitted a proposal for such an innovative project
to VADEQ. International Paper's innovation project relied on the
principles established in the Joint EPA/State Agreement to Pursue
Regulatory Innovation that was signed by EPA and the Environmental
Council of States (ECOS) in 1998.
The International Paper innovation project includes a number of
environmentally beneficial projects that will: (1) Reduce groundwater
use; (2) reduce solid waste generation and disposal; (3) reduce
chemical and biological oxygen demand, and total suspended solids
discharges to surface water; (4) reduce overall emissions for a number
of air pollutants; and, (5) increase the efficiency of pulp production.
By implementing this project, emissions of hazardous air pollutants
will be reduced at the Mill by an estimated 430 tons per year.
Emissions increases of criteria pollutants and carbon dioxide from
typical NESHAP control strategies will also be reduced under this
project. These reductions, along with improvements in the combustion
efficiencies of the No. 7 power boiler and No. 6 recovery furnace will
result in a decreased use of fossil fuels and will net large decreases
in criteria pollutant emissions from the Mill. The reduction in useable
fiber discharges in the mill sewer along with improvements in the
performance of the wastewater treatment system will result in
substantial reductions in discharges of wastewater pollutants.
Generation of thousands of tons per year of solid waste will also be
eliminated.
In order to implement these projects, certain innovations to the
typical regulatory implementation process were necessary in order to
make these environmentally beneficial projects a reality. First, the
International Paper innovation project required an
[[Page 45166]]
alternative regulatory approach under section 112 of the Clean Air Act
(CAA). Pursuant to section 112, EPA promulgates the national emissions
standards for hazardous air pollutants (NESHAP) for various categories
of air pollution sources. On April 15, 1998, EPA promulgated a NESHAP
for the Pulp and Paper Industry, as codified at 40 CFR part 63, subpart
S, Sec. 63.440 through 63.459. International Paper's Franklin Mill is
subject to subpart S. 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 section 112
rules, emission standards, or requirements. On April 15, 2004 (69 FR
19943), EPA published in the Federal Register an approval of an
equivalency-by-permit determination made by the VADEQ for the
International Paper, Franklin Mill. The VADEQ established the new
requirements via a title V operating permit issued to the facility on
March 31, 2006. In general, the equivalency-by-permit terms require
International Paper to control different emission points of hazardous
air pollutants (HAPs) at its facility than prescribed by the Pulp and
Paper NESHAP (subpart S).
In addition to the approval above and in order to implement some of
the other environmentally-beneficial projects contained in the
innovation project proposal, International Paper would also need
certain flexibility under the Commonwealth's existing preconstruction
permitting regulations. The subject of this rulemaking action is to
allow for those flexibilities by providing a limited variance to
Virginia's existing permitting regulations. The variance allows the
Commonwealth to establish site-wide emissions caps for a variety of
pollutants, mostly criteria pollutants. The site-wide caps would be
relied upon to limit the applicability of the provisions of Virginia's
federally-enforceable major new source review provisions. Under
Virginia's existing programs, sources may not rely upon site-wide
emissions caps in order to limit the applicability of major new source
review.
Typically, unit-specific limitations are required. The site-wide
caps allow International Paper to make certain changes to its emission
sources, primarily the boilers, that will allow them to maximize their
utilization while minimizing their existing emissions and limiting
their future potential emissions. Site-wide emissions caps are a type
of new source review program flexibility that EPA has experimented with
in the past. In fact, EPA made changes to the federal new source review
regulations at the end of 2002 (See 67 FR 80186) that incorporated this
type of regulatory flexibility and called it a ``plantwide
applicability limit''.
II. Summary of SIP Revision
On December 13, 2005, the DEQ submitted a State Implementation Plan
(SIP) approval request entitled ``Variance for International Paper,
Franklin Paper Mill''. The applicable regulations for the variance were
adopted by the State Air Pollution Control Board on June 22, 2005 in
accordance with the requirements of the Virginia Air Pollution Control
Law at Title 10.1 Chapter 13 of the Code of Virginia and 40 CFR part
51. These regulations allow the VADEQ to issue a permit for
International Paper that will replace all previously issued minor NSR
permits and PSD permits and establish site-wide emission caps for a
number of regulated pollutants that may be relied upon for purposes of
new source review applicability. The variance provides regulatory
relief from compliance with state regulations governing new source
review (Virginia Code--Article 4 of Chapter 50, and Articles 6, 8 and 9
of Chapter 80) for the implementation of the International Paper
innovation project. In lieu of compliance with these regulatory
requirements, the variance requires the facility to comply with site-
wide emission caps.
III. General Information Pertaining to SIP Submittals From the
Commonwealth of Virginia
In 1995, Virginia adopted legislation that provides, subject to
certain conditions, for an environmental assessment (audit)
``privilege'' for voluntary compliance evaluations performed by a
regulated entity. The legislation further addresses the relative burden
of proof for parties either asserting the privilege or seeking
disclosure of documents for which the privilege is claimed. Virginia's
legislation also provides, subject to certain conditions, for a penalty
waiver for violations of environmental laws when a regulated entity
discovers such violations pursuant to a voluntary compliance evaluation
and voluntarily discloses such violations to the Commonwealth and takes
prompt and appropriate measures to remedy the violations. Virginia's
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and
information about the content of those documents that are the product
of a voluntary environmental assessment. The Privilege Law does not
extend to documents or information (1) that are generated or developed
before the commencement of a voluntary environmental assessment; (2)
that are prepared independently of the assessment process; (3) that
demonstrate a clear, imminent and substantial danger to the public
health or environment; or (4) that are required by law.
On January 12, 1998, the Commonwealth of Virginia Office of the
Attorney General provided a legal opinion that states that the
Privilege Law, Va. Code Sec. 10.1-1198, precludes granting a privilege
to documents and information ``required by law,'' including documents
and information ``required by Federal law to maintain program
delegation, authorization or approval,'' since Virginia must ``enforce
Federally authorized environmental programs in a manner that is no less
stringent than their Federal counterparts * * *.'' The opinion
concludes that ``[r]egarding 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 Clean Air Act, including, for example,
[[Page 45167]]
sections 113, 167, 205, 211 or 213, to enforce the requirements or
prohibitions of the state plan, independently of any state enforcement
effort. In addition, citizen enforcement under section 304 of the Clean
Air Act is likewise unaffected by this, or any, state audit privilege
or immunity law.
IV. Final Action
EPA is approving this SIP revision request submitted by the
Commonwealth of Virginia. This revision consists of approving the
variance regulations adopted by Virginia at 9 VAC 5 Chapter 230 for the
International Paper, Franklin Paper Mill. The variance provides
regulatory relief from compliance with state regulations governing new
source review for the implementation of the International Paper
innovation project. In lieu of compliance with these regulatory
requirements, the variance requires the facility to comply with site-
wide emission caps. EPA is publishing this rule without prior proposal
because the Agency views this as a non-controversial amendment and
anticipates no adverse comment. This variance includes a number of
environmentally beneficial projects which will reduce groundwater use,
reduce solid waste generation and disposal, reduce Chemical Oxygen
Demand and Total Suspended Solids disposal to surface water, increase
the efficiency of pulp production and reduce overall emissions for a
number of air pollutants. However, in the ``Proposed Rules'' section of
today's Federal Register, EPA is publishing a separate document that
will serve as the proposal to approve the SIP revision if adverse
comments are filed. This rule will be effective on October 12, 2007
without further notice unless EPA receives adverse comment by September
12, 2007. If EPA receives adverse comment, EPA will publish a timely
withdrawal in the Federal Register informing the public that the rule
will not take effect. EPA will address all public comments in a
subsequent final rule based on the proposed rule. EPA will not
institute a second comment period on this action. Any parties
interested in commenting must do so at this time. Please note that if
EPA receives adverse comment on an amendment, paragraph, or section of
this rule and if that provision may be severed from the remainder of
the rule, EPA may adopt as final those provisions of the rule that are
not subject of an adverse comment.
V. Statutory and Executive Order Reviews
A. General Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (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
requirement, and does not alter the relationship or the distribution of
power and responsibilities established in the Clean Air Act. This rule
also is not subject to Executive Order 13045 ``Protection of Children
from Environmental Health Risks and Safety Risks'' (62 FR 19885, April
23, 1997), because it approves a state rule implementing a Federal
standard.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
B. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
C. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by October 12, 2007. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action approving the variance for International
Paper, Franklin Paper Mill in Franklin, Virginia may not be challenged
later in proceedings to enforce its requirements. (See section
307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.
[[Page 45168]]
Dated: July 31, 2007.
William T. Wisniewski,
Acting 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 (c) is amended by adding
the entry for Chapter 230 to read as follows:
Sec. 52.2420 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Virginia Regulations and Statutes
----------------------------------------------------------------------------------------------------------------
State Explanation [former
State citation (9 VAC 5) Title/subject effective date EPA approval date SIP citation]
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Chapter 230 Variance for International Paper Franklin Paper Mill
----------------------------------------------------------------------------------------------------------------
5-230-10........................ Applicability and 09/07/05 08/13/07 [Insert ...................
designation of page number where
affected facility. the document
begins].
5-230-20........................ Definitions........ 09/07/05 08/13/07 [Insert ...................
page number where
the document
begins].
5-230-30........................ Authority to 09/07/05 08/13/07 [Insert ...................
operate under this page number where
chapter and FESOP. the document
begins].
5-230-40 (Except A.7., A.9., Sitewide Emissions 09/07/05 08/13/07 [Insert ...................
A.10., and B.2.). Caps. page number where
the document
begins]
5-230-50........................ New Source Review 09/07/05 08/13/07 [Insert ...................
program and page number where
registration the document
requirements. begins].
5-230-60 (Except A.1.).......... Other regulatory 09/07/05 08/13/07 [Insert ...................
requirements. page number where
the document
begins].
5-230-70........................ Federal Operating 09/07/05 08/13/07 [Insert ...................
Permits. page number where
the document
begins].
5-230-80........................ FESOP issuance and 09/07/05 08/13/07 [Insert ...................
amendments. page number where
the document
begins].
5-230-90........................ Transfer of 09/07/05 08/13/07 [Insert ...................
ownership. page number where
the document
begins].
5-230-100....................... Applicability of 09/07/05 08/13/07 [Insert ...................
future regulation page number where
amendments. the document
begins].
5-230-110....................... Termination of 09/07/05 08/13/07 [Insert ...................
authority to page number where
operate under this the document
chapter and FESOP. begins].
5-230-120....................... Review and 09/07/05 08/13/07 [Insert ...................
confirmation of page number where
this chapter by the document
Board. begins].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[[Page 45169]]
* * * * *
[FR Doc. E7-15587 Filed 8-10-07; 8:45 am]
BILLING CODE 6560-50-P