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Approval and Promulgation of Air Quality Implementation Plans; Virginia; State Implementation Plan Revision for Burlington Industries, Clarksville, VA
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: July 11, 2006 (Volume 71, Number 132)]
[Proposed Rules]
[Page 39030-39032]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11jy06-28]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2006-0059; FRL-8192-8]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; State Implementation Plan Revision for Burlington Industries,
Clarksville, VA
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP)
revision submitted by the Commonwealth of Virginia. This revision
pertains to the removal of a Consent Agreement from the Virginia SIP.
The Consent Agreement was written for the control of emissions of
sulfur dioxide from the Burlington Industries facility located in
Clarksville, Mecklenburg County, Virginia. This Agreement has been
superseded by a federally enforceable state operating permit dated May
17, 2004, which imposes operating restrictions on the facility's
boilers and the subsequent shutdown of the remainder of the facility.
This action is being taken under the Clean Air Act (CAA or the Act).
DATES: Written comments must be received on or before August 10, 2006.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2006-0059 by one of the following methods:
A. http://www.regulations.gov. Follow the on-line instructions for
submitting comments.
B. E-mail: campbell.david@epa.gov
C. Mail: EPA-R03-OAR-2006-0059, David J. Campbell, Chief, Permits
and Technical Assistance 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-
2006-0059. 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.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 http://www.regulations.gov or e-mail.
The http://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 http://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
[[Page 39031]]
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
http://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 http://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.
FOR FURTHER INFORMATION CONTACT: Sharon McCauley, (215) 814-3376, or by
e-mail at mccauley.sharon@epa.gov.
SUPPLEMENTARY INFORMATION: On July 12, 2004, the Virginia Department of
Environmental Quality submitted a revision request to its SIP entitled
``SIP Revision for Burlington Industries''. The request was for the
removal of a Consent Agreement incorporated into the Virginia SIP. This
agreement was written to regulate the control of emissions of sulfur
dioxide from the Burlington Industries facility located in Clarksville,
Virginia.
I. Background
The need to restrict the operation and reduce the allowable sulfur
dioxide emissions of the Burlington Industries facility was discovered
through an Air Quality Impact Analysis supporting a Prevention of
Significant Deterioration permit application submitted by the
Mecklenburg Cogeneration Limited Partnership. The analysis indicated
that Burlington Industries had the potential to exceed the primary and
secondary National Ambient Air Quality Standards (NAAQS) for sulfur
dioxide when operating at its maximum allowable levels. As a result,
Burlington Industries voluntarily agreed to a control program with the
Virginia State Air Pollution Control Board.
In 1991, Burlington Industries submitted a plan (including proposed
operating restrictions and a dispersion modeling demonstration) for
mitigating any potential NAAQS violations. Because no regulations for
issuing operating permits existed at that time in Virginia, the plan
was incorporated into a legally enforceable Consent Agreement on
November 19, 1991 between the Commonwealth and Burlington Industries.
In order to then make the provisions federally enforceable, Virginia
submitted the Consent Agreement to EPA as part of a SIP revision, and
EPA subsequently approved this SIP revision on March 18, 1992 (57 FR 9388).
II. Summary of SIP Revision
EPA is proposing to approve this SIP revision submitted by the
Commonwealth of Virginia. Burlington Industries' federal operating
(Title V) permit which included conditions from the Consent Agreement
was issued on December 14, 2001. In 2002, Burlington Industries closed
its facility and all of the manufacturing equipment was removed;
however, the boilers remained operable. Burlington Industries requested
that the Commonwealth impose additional operating restrictions at the
facility. As a result of these additional restrictions, the facility is
no longer considered a major source with respect to the Title V
program. In order to make these new restrictions state and Federally
enforceable, it is necessary to include Burlington Industries in a new
Federally enforceable state operating permit, which would then become
the legally enforceable mechanism for implementing the restrictions.
The new Federally enforceable state operating permit issued on May
17, 2004 vacated the original Consent Agreement from Nov. 19, 1991 and
automatically rendered it ineffective at the state level. In order to
vacate the Agreement at the federal level, the Virginia SIP must be
revised to remove the Consent Agreement previously approved at 40 CFR
52.2420(c)(96), and currently cited at 40 CFR 52.2420(d) and
52.2465(c)(96). EPA is proposing to remove the Consent Agreement from
the Virginia SIP.
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.''
[[Page 39032]]
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, 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. Proposed Action
EPA is proposing to approve the removal of the vacated Consent
Agreement for Burlington Industries from the Virginia SIP. EPA is
soliciting public comments on the issues discussed in this document.
These comments will be considered before taking final action.
V. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed 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 proposes to approve state law as meeting Federal
requirements and imposes no additional requirements beyond those
imposed by state law. Accordingly, the Administrator certifies that
this proposed 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 proposes to approve 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 proposed rule also does 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), nor will it 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), because it
merely proposes to approve 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
proposed rule also is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997), because it is not economically significant.
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. As required by section 3
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing
this proposed rule, EPA has taken the necessary steps to eliminate
drafting errors and ambiguity, minimize potential litigation, and
provide a clear legal standard for affected conduct. EPA has complied
with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining
the takings implications of the rule in accordance with the ``Attorney
General's Supplemental Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings'' issued under the executive order.
This proposed rule to approve the Virginia Department of Environmental
Quality State Implementation Plan revision request for the removal of
the Consent Agreement for the Burlington Industries facility located in
Clarksville, Mecklenburg County, VA, does not impose an information
collection burden under the provisions of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Reporting and
recordkeeping requirements, Sulfur oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 27, 2006.
William T. Wisniewski,
Acting Regional Administrator, Region III.
[FR Doc. 06-6149 Filed 7-10-06; 8:45 am]
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