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Approval and Promulgation of State Air Quality Plans for Designated Facilities and Pollutants, Commonwealth of Virginia; Control of Municipal Waste Combustor Emissions From Large Existing Municipal Solid Waste Combustor Units
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: October 29, 2004 (Volume 69, Number 209)]
[Rules and Regulations]
[Page 63075-63079]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29oc04-20]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[R03-OAR-2004-VA-0002a; FRL-7831-5]
Approval and Promulgation of State Air Quality Plans for
Designated Facilities and Pollutants, Commonwealth of Virginia; Control
of Municipal Waste Combustor Emissions From Large 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) 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 large MWC with a unit capacity of more than
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
September 20, 1994.
DATES: This rule is effective December 28, 2004 without further notice,
unless EPA receives adverse written comment by November 29, 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 Regional Material in
EDocket (RME) ID Number R03-OAR-2004-VA-0002 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.
C. E-mail: wilkie.walter@epa.gov.
D. Mail: R03-OAR-2004-VA-0002, 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. R03-OAR-2004-VA-
0002. 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://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://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 topsale.jim@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On December 19, 1995, pursuant to sections 111 and 129 of the Clean
Air Act (Act), EPA promulgated new source performance standards (NSPS)
applicable to new MWC units and emission guidelines (EG) applicable to
existing MWC units. The NSPS and EG are codified at 40 CFR part 60,
subparts Eb and Cb, respectively. See 60 FR 65387. Subparts Cb and Eb
regulate the following: particulate matter, opacity, sulfur dioxide,
hydrogen chloride, oxides of nitrogen, carbon monoxide, lead, cadmium,
mercury, and dioxins and dibenzofurans.
[[Page 63076]]
However, on April 8, 1997, the United States Court of Appeals for
the District of Columbia Circuit vacated subparts Cb and Eb as they
apply to MWC units with combustion capacity less than or equal to 250
tons per day of MSW (small MWCs), 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 now apply only to MWC units with
individual unit combustion capacity of more than 250 tons per day of
MSW (i.e., large MWC units). This change was published in the Federal
Register (62 FR 45116) on August 25, 1997. In addition, subsequent
clarifying amendments were published in the Federal Register (66 FR
57824) on November 16, 2001.\1\
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\1\ An additional EG amendment was promulgated in the Federal
Register (66 FR 36473) on July 12, 2001. However, the amendment is
known to impact only one affected facility in Georgia.
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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 November 12, 1998
EPA promulgated a Federal implementation plan (FIP), amended May 24,
2000, for large MWC units that commenced construction on or before
September 20, 1994. The FIP (40 CFR part 62, subpart FFF, 63 FR 63191
and 65 FR 33461) is a set of maximum achievable control technology
(MACT) requirements that implement the 1995 large MWC emission
guidelines for states, such as Virginia, without an approved plan. The
FIP fills a Federal enforceability gap until state plans are approved
and ensures that the affected MWC units stay on track to complete
pollution control equipment retrofit schedules in order to meet the
final statutory compliance date of December 19, 2000.
II. Review of Virginia's MWC Plan
EPA has reviewed the Virginia plan, submitted on August 18, 2003,
for existing large MWC units in the context of the requirements of 40
CFR part 60, and subparts B and Cb, 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 large
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 4-54 and other supporting air program rules) to
control large MWC emissions. Rule 4-54, Emission Standards for Large
MWC, became effective on August 4, 1999, and was subsequently amended
on February 1, 2002, and July 1, 2003. Other applicable and effective
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 a capacity greater than 250 TPD). The DEQ has identified three (3)
affected facilities. Each have an MWC unit capacity greater than 250
TPD. The affected facilities are Covanta Fairfax with four units,
Covanta Alexandria with three units, and the Southeastern Public
Service Authority with four units.
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 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 Cb. A review of the
applicable Rule 4-54 emissions limitations shows that all are ``at
least as protective'' as those in the EG, as amended. In addition to
the required section 129 emissions limitations, other limitations under
Rule 4-54 (i.e., 9 VAC 5-40-8080, 8100, and 8100E), relating to odors,
toxic pollutants (state only requirements), and nitrogen oxides
(NOX) emissions trading, are not within the scope of section
129 requirements for plan approval. These other emissions limitations
are not relevant or approvable under this plan approval action. This is
discussed further in Section III, Final Action.
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
MWCs must meet in order to comply with the requirements of the plan.
Also, Title 40 CFR 60.39b of the EG provides that planning, awarding of
contracts, and installation of air emission collection and control
equipment capable of meeting the EG requirements must be accomplished
within 3 years of EPA plan approval, but in no case later than December
19, 2000. Accordingly, the DEQ determined that source compliance with
the EG emissions limits must be achieved on or before December 19,
2000, as stipulated in the promulgated FIP. In order to implement this
requirement, Rule 4-54, 9 VAC 5-40-8110, incorporates by reference the
Federal plan compliance schedule provisions of 40 CFR 62.14108 and
[[Page 63077]]
62.14109(e) through (m) which establish expeditious interim and final
compliance dates that are consistent with the provisions of 40 CFR
60.24(c) and (e), and 40 CFR 60.39b of subparts B and Cb, respectively.
The state plan meets the applicable Federal compliance schedule
requirements.
G. Testing, Monitoring, Recordkeeping, and Reporting Requirements
The provisions of 40 CFR 60.24(b) and 60.25(b) stipulate facility
testing, monitoring recordkeeping and reporting requirements for state
plans. Also, related EG provisions 40 CFR 60.38b and 60.39b cross
reference applicable NSPS (subpart Eb) requirements that state plans
must include. The DEQ regulation meets the subpart B requirements of 40
CFR 60.24 and 60.25; and the related subpart Cb provisions of 40 CFR
60.38b and 60.39b. However, when considering that Rule 4-54 references
40 CFR 60.11(e), which allows use of continuous opacity monitoring
(COM) data, a point of clarity is in order. The opacity limitations
promulgated under subparts Cb and Eb were based on stack test data
using EPA Method 9. Accordingly, COM data is used only as an indicator
for corrective actions, if necessary, or as the basis for a compliance
retest of the MWC facility. This matter is discussed and clarified in
EPA's Background Information Document (EPA-453/R-95-0136) for the MWC
rules.
H. A Record of Public Hearing on the State Plan
Public hearings on the plan were held October 17, 2000 and July 23,
2003. Applicable portions of Rule 4-54 became effective initially on
August 4, 1999, with subsequent amendments on February 1, 2002 and July
1, 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 reports on progress in
plan enforcement to EPA on an annual (calendar year) basis, commencing
with the first full report period after plan approval.
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
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.
III. 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 the DEQ letters of August 11, and 18,
2003; and April 6, and August, 25, 2004 to EPA. The identified
exclusions, for example, include Rule 4-54 provisions relating to
odors, toxic pollutants (state only requirements), NOX
emissions trading, and MWC operator requirements under the Virginia
Board for Waste Management Facility Operators. As a result of this EPA
approval action, the Federal plan is no longer applicable, except for
the compliance schedule provisions of 40 CFR 62.14108 and 62.14109(e)
through (m) that are incorporated by reference into Rule 4-54. Also,
with respect to certain plan decisions, EPA retains discretionary
authority for several actions as listed in the August 18, 2003 plan
narrative, paragraph H. 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
[[Page 63078]]
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 large
MWC units that are subject to the provisions of 40 CFR part 60,
subparts B, and Cb; and 40 CFR part 62, subpart FFF, as applicable.
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 December 28,
2004 without further notice unless EPA receives adverse comments by
November 29, 2004. 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.
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 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 (59 FR 22951, 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. 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 three (3) specific facilities.
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 December 28, 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, approving the Virginia section 111(d)/129
plan for large 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: September 27, 2004.
Thomas C. Voltaggio,
Acting Regional Administrator, Region III.
? 40 CFR part 62 is amended as follows:
PART 62--[AMENDED]
? 1. The authority citation for part 62 is revised to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart VV--Virginia
? 2. Add a center heading, and Sec. Sec. 62.11640, 62.11641, and
62.11642 to subpart VV to read as follows:
EMISSIONS FROM EXISTING LARGE MUNICIPAL WASTE
COMBUSTOR (MWC) UNITS--SECTION 111(d)/129 PLAN
Sec. 62.11640 Identification of plan.
Section 111(d) /129 plan for large MWC units with a capacity
greater than 250 tons per day (TPD) and the associated Virginia Air
Pollution Control Board Regulations (Rule 4-54, and other supporting
rules identified in the plan), submitted to EPA on August 18, 2003,
including supplemental information submitted on August 11
[[Page 63079]]
and September 30, 2003; and April 6, and August 25, 2004.
Sec. 62.11641 Identification of sources.
The affected facility to which the plan applies is each large MWC
unit for which construction commenced on or before September 20, 1994.
Sec. 62.11642 Effective date.
The effective date of the plan for large MWC units is December 28,
2004.
[FR Doc. 04-24240 Filed 10-28-04; 8:45 am]
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