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ENVIRONMENTAL PROTECTION AGENCY
Environmental Protection Agency
CFR Citation: 40 CFR Part 52
VA ID: [VA122 & 123-5054; FRL-6888-4]
NOTICE: PROPOSED RULES
ACTION: Air quality implementation plans; approval and promulgation; various States:
DOCUMENT ACTION: Proposed rule.
SUBJECT CATEGORY: Approval and Promulgation of Air Quality Implementation Plans; Virginia; Source-Specific Permits To Reduce NO
DATES: Written comments must be received on or before November 9, 2000.
DOCUMENT SUMMARY: EPA is proposing to approve two permits issued by the
Commonwealth of Virginia for the Potomac Electric Power Company
(PEPCO), Potomac River Generating Station and the Virginia Power (VP),
Possum Point Generating Station. These permits were submitted as State
Implementation Plan (SIP) revisions on September 19, 2000 and September
26, 2000, respectively, by the Virginia Department of Environmental
Quality (VADEQ). These permits impose conditions which reduce nitrogen
oxides (NO
SUMMARY: Virginia,
SUPPLEMENTAL INFORMATION
Table of ContentsI. What is EPA proposing to approve?
II. What pollutant will these SIP revisions control?
III. What are the limits for these sources?
IV. What are the environmental effects of this action?
V. General information pertaining to Submittals for the Commonwealth VII. Proposed Action.
VIII. Administrative Requirements.
I . What Is EPA Proposing To Approve?
EPA is proposing to approve two permits issued by the Commonwealth
of Virginia for the Potomac Electric Power Company's (PEPCO) Potomac
River Generating Station in Alexandria and for the Virginia Power (VP),
Possum Point Generating Station in Dumfries, submitted as SIP revisions
on September 19, 2000 and September 26, 2000, respectively. These permits impose conditions which reduce nitrogen oxides (
NO
II. What Pollutant Will These SIP Revisions Control?
The proposed permits require the Potomac River Station and the
Possum Point Station to reduce their NO
III. What Are the Limits for These Sources?
The permit for the Potomac River Generating Station establishes a
limit (cap) on emission of nitrogen oxides to no more than 1019 tons
during each ozone season (May 1 through September 30). This emission
cap is based on an average emission rate of 0.15 pound per million BTU
of heat input for each individual unit during the ozone season.
Compliance shall be demonstrated by continuous emission monitoring from [[Page 62667]]
each unit, beginning no later than year 2003. The permit for the Possum
Point Generating Station limits emission of nitrogen oxides from the
combined emission units to no more than 0.15 pound per million BTU of
heat input averaged over every period of 30 consecutive operating days
during the ozone season. Compliance shall be demonstrated by
calculations based upon a specific formula with the input to be derived
from the collection of continuous emission monitoring data, beginning the 30th operating day in January of year 2003.
IV. What Are the Environmental Effects of This Action?
Both electric utilities are currently operating their emission
units in compliance with VADEQ issued permits imposing Reasonably
Available Control Technology (RACT) and ``Acid Rain'' permits issued
pursuant to Title IV of the CAA. The NO
V. General Information Pertaining to Submittals From the
Commonwealth
In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) ``privilege'' for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1 1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information (1) that are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.
On January 12, 1997, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.11198, 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 section 10.11198, 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. 10.11199, provides that ``[t]o the extent consistent with requirements imposed by Federal law,'' any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1997 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since ``no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with federal law, which is one of the criteria for immunity.''
Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its 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.
EPA's review of this material indicates that proposed permits will
have a beneficial effect on air quality by reducing NO
EPA is proposing to approve two permits issued by the Commonwealth
of Virginia to control NO
VIII. Administrative Requirements
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. This proposed 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
[[Page 62668]]
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 (Public Law 1044). For the same reason, this proposed rule also
does not significantly or uniquely affect the communities of tribal
governments, as specified by Executive Order 13084 (63 FR 27655, May
10, 1998). This proposed rule will 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), because it merely proposes to approve 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 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 permits issued
by the Commonwealth of Virginia to control NO
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: October 13, 2000.
Thomas Voltaggio,
Acting Regional Administrator, Region III.
[FR Doc. 0026906 Filed 101800; 8:45 am]
BILLING CODE 656050P
FOR FURTHER INFORMATION CONTACT Michael Ioff at (215) 814-2166.
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