Approval and Promulgation of Air Quality Implementation Plans; Virginia; Reasonably Available Control Technology for Major Sources of Nitrogen Oxides

[Federal Register Volume 64, Number 16 (Tuesday, January 26, 1999)]
[Proposed Rules]
[Pages 3891-3896]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1648]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[VA024-5037; FRL-6223-6]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Reasonably Available Control Technology for Major Sources of 
Nitrogen Oxides

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing conditional limited approval of a State 
Implementation Plan (SIP) revision submitted by the Commonwealth of 
Virginia. This revision establishes and requires the implementation of 
reasonably available control technology (RACT) on major sources of 
nitrogen oxides (NOX) in the northern Virginia portion of 
the Metropolitan Washington D.C. serious ozone nonattainment area. The 
intended effect of this action is to propose conditional limited 
approval of Virginia regulations to impose RACT on major sources of 
NOX.

DATES: Comments must be received on or before February 25, 1999.

ADDRESSES: Comments may be mailed to David L. Arnold, Chief, Ozone and 
Mobile Sources Branch, Mailcode 3AP21, U.S. Environmental Protection 
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. 
Copies of the documents relevant to this action are available for 
public inspection during normal business hours at the Air Protection 
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch 
Street, Philadelphia, Pennsylvania 19103 and

[[Page 3892]]

the Virginia Department of Environmental Quality, 629 East Main Street, 
Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Kristeen Gaffney, (215) 814-2092. Or 
by e-mail at gaffney.kristeen@epa.gov. While information may be 
requested via e-mail, any comments must be submitted in writing to the 
EPA Region III address above.

SUPPLEMENTARY INFORMATION:

I. Background

    On November 9, 1992, the Commonwealth of Virginia submitted a 
revision to its State Implementation Plan (SIP). This SIP revision 
consisted of regulations to establish reasonably available control 
technology (RACT) requirements on major sources of nitrogen oxides 
(NOX) in the northern Virginia portion of the Metropolitan 
Washington D.C. serious ozone nonattainment area. The Commonwealth 
submitted additional materials to supplement the November 9, 1992 SIP 
revision on December 11, 1992 and again on April 11, 1998. This action 
is being taken under section 110 of the Clean Air Act (the Act).
    Section 182(f) of the Act requires states to submit rules to 
implement RACT on major sources of NOX in ozone 
nonattainment areas designated as moderate or above and throughout the 
Ozone Transport Region. The definition of major source is determined by 
the classification of the nonattainment area and whether or not it is 
located in the Ozone Transport Region. A portion of Northern Virginia 
is part of the Metropolitan Washington D.C. serious ozone nonattainment 
area and that same portion of Virginia is in the Ozone Transport 
Region. Therefore, sources in the Northern Virginia portion of the 
Washington D.C. nonattainment area which emit or have the potential to 
emit 50 tons or more of NOX per year are considered major 
and are subject to the NOX RACT requirements of the Act.
    On November 9, 1992, the Virginia Department of Environmental 
Quality (VADEQ) submitted a revision to its SIP consisting of adopted 
regulations to impose NOX RACT on major sources in the 
northern Virginia nonattainment area. The VADEQ supplemented its 
November 1992 submittal on December 11, 1992. On August 11, 1998, the 
VADEQ made a submittal to EPA withdrawing certain provisions of the 
November 9, 1992 submittal, and forwarding revisions that corrected 
typographical errors and recodified and renumbered one of the relevant 
regulations, Appendix T [now 9 VAC 5-40-311].

II. Description of the SIP Revision Submittal

    The November 9, 1992 submittal consisted of revisions to Virginia 
Regulation (VR) 120-01, Part IV, Emission Standards for General Process 
Operations (Rule 4-4) and to Appendix T, entitled ``Reasonably 
Available Control Technology Guidelines for Stationary Sources of 
Nitrogen Oxides''. Rule 4-4 was amended to insert a new section, 120-
04-0408, entitled ``Standard for nitrogen oxides''. To accommodate the 
insertion of section 120-04-0408, the revision also renumbered the 
previously existing sections 120-04-0408 through 120-04-0418, 
inclusive, as sections 120-04-0409 through 120-04-0419, inclusive. On 
April 11, 1998, the VADEQ submitted a revised version of Appendix T to 
correct a technical error in the Virginia Register version of the final 
rule dated November 30, 1992. This error was corrected by Virginia in 
the Virginia Register on June 23, 1997. On April 11, 1998, the 
Commonwealth submitted the corrected version of Appendix T. In addition 
to the typographical correction, the Commonwealth also recodified 
Appendix T and renumbered it as 9 VAC 5-40-311.
    Section 120-04-0408, entitled ``Standard for nitrogen oxides'' has 
five subsections:
    Subsection (A) prohibits owners or other persons of affected 
facilities from permitting or causing NOX emissions in 
excess of that resulting from using RACT.
    Subsection (B) requires that compliance with RACT under subsection 
(A) be that defined in Appendix T [now 9 VAC 5-40-311] unless the 
source owner demonstrates otherwise to the satisfaction of the Virginia 
Air Pollution Control Board (the Board).
    Subsection (C) defines which facilities are subject to the rule. 
NOX RACT applies to all stationary sources located in the 
Northern Virginia Emissions Control Area that have a theoretical 
potential to emit of 50 tons per year or greater of NOX. 
Subsection (C) also provides guidance on the calculation of 
``theoretical potential to emit'' for determining applicability of 120-
04-0408.
    Subsection (D) requires owners of facilities subject to subsection 
(A) to notify the Board of applicability status, to commit to making a 
determination of what constitutes RACT and to submit a schedule to the 
Board for making this determination. Compliance with RACT is to be 
achieved as expeditiously as practicable but no later than May 31, 
1995.
    Subsection (E) requires owners of facilities subject to subsection 
(B) to notify the Board of applicability status, to commit to accepting 
an applicable standard in Appendix T or to submit a demonstration of 
RACT, and to provide a schedule for submitting that demonstration no 
later than January 1, 1994. Compliance with RACT is to be achieved as 
expeditiously as practicable but no later than May 31, 1995.
    Appendix T [now 9 VAC 5-40-311] consists of four sections:
    Section A--General states that RACT required by section 120-04-0408 
is as defined in this section for certain source types unless approved 
otherwise by the Board.
    Section B--Definitions defines various terms. The following terms 
are defined: ``capacity factor'', ``combustion modification'', 
``combustion unit'', ``fossil fuel'', ``fuel burning equipment'', 
``fuel burning equipment installation'', ``gas turbine'', ``heat 
input'', ``incinerator'', ``internal combustion engine'', ``process 
heater'', ``rated capacity'', ``refuse derived fuel'', ``steam 
generating unit'', and ``total capacity''.
    Section C--Definition of reasonably available control technology 
defines emission limits as RACT for steam generating units, process 
heaters and gas turbines and requires RACT to be demonstrated on a 
daily basis. Section C of VAC 5-40-311 also exempts certain source 
categories and/or applicability thresholds for source categories from 
the requirement to demonstrate RACT under subsection 120-04-0408 (B). 
On August 11, 1998, VADEQ withdrew subdivisions C.3.a. and C.3.c. of 
section C. of 9 VAC 5-40-311 (formerly Appendix T) from its SIP 
revision submittal pending before EPA. Therefore, the provisions of 
subdivisions C.3.a. and C.3.c. of 9 VAC 5-40-311 are not being 
considered for approval as part of the Virginia SIP.
    Section D--Emission Allocation System--On August 11, 1998, VADEQ 
withdrew section D of 9 VAC 5-40-311 (formerly section IV of Appendix 
T) from its SIP revision submittal pending before EPA. Therefore, the 
provisions of section D of 9 VAC 5-40-311 are not being considered for 
approval as part of the Virginia SIP.

III. EPA's Evaluation of the SIP Revision

A. Applicability

    The provisions of section 120-04-0408, Standard for Nitrogen 
Oxides, apply to all sources in the Northern Virginia Emissions Control 
Area having

[[Page 3893]]

a theoretical potential to emit 50 or more tons per year of 
NOX. The Northern Virginia Emissions Control Area consists 
of the counties of Arlington, Fairfax, Loudoun, Prince William and 
Stafford, and the cities of Alexandria, Fairfax, Falls Church, Manassas 
and Manassas Park. The geographical coverage of the Northern Virginia 
Emissions Control Area is the same as the Virginia portion of the 
designated Metropolitan Washington D.C. ozone nonattainment area. 
Virginia's section 120-04-0408 covers the same area as that required by 
section 182(f) of the Act for the Virginia portion of the Washington 
D.C. ozone nonattainment area, and meets the requirements for approval.

B. Presumptive RACT Emission Limits for Steam Generating Units/Process 
Heaters and Gas Turbines

    Section C of 9 VAC 5-40-311 (formerly Appendix T) establishes 
presumptive RACT emission limits for steam generating units, process 
heaters and gas turbines. Subdivision C.1.a. sets limits for steam 
generating units and process heaters with a rated capacity of 100 or 
greater million British Thermal Units per hour (MMBTU/hr) as indicated 
in Table 1, below.

                                                     Table 1
----------------------------------------------------------------------------------------------------------------
           Fuel type             Face* and tangential firing         Cyclone firing               Stokers
----------------------------------------------------------------------------------------------------------------
Coal--wet bottom..............  1.0 lbs/MMBTU...............  .55 lbs/MMBTU..............  N/A.
Coal--dry bottom..............  .38 lbs/MMBTU...............  N/A........................  .4 lbs/MMBTU.
Oil or Gas or both............  .25 lbs/MMBTU...............  .43 lbs/MMBTU..............  N/A
Gas only......................  .20 lbs/MMBTU...............  N/A........................  N/A
----------------------------------------------------------------------------------------------------------------
*Includes wall, opposed and vertical firing methods.

    Subdivision C.1.b. of 9 VAC 5-40-311 (formerly Appendix T) sets 
presumptive RACT limits for gas turbines. All limits for gas turbines 
are expressed in terms of dry volume corrected to 15 percent oxygen. 
RACT for gas-fuel, simple or combined cycle turbines, is 42 parts per 
million dry volume (ppmvd) of NOX. RACT for oil-fueled 
simple or combined cycle units, is 65 ppmvd NOX when the 
fuel bound nitrogen content is less than 0.015 percent and a limit of 
77 ppmvd when the fuel bound nitrogen content is greater than or equal 
to 0.015 percent.
    Subdivision C.2. of 9 VAC 5-40-311 requires that compliance with 
the limits set in C.1.a. and b. shall be met on a daily basis. EPA is 
proposing to approve the provisions of C.1.a. and b. and C.2. of 9 VAC 
5-40-311 (formerly Appendix T) as RACT for utility boilers, process 
heaters and gas turbines.

C. Compliance

    Subsections 120-04-0408 (D) and (E) require compliance with RACT as 
expeditiously as practicable but not later than May 31, 1995. This 
meets the corresponding requirement under section 182(f) of the Act and 
is approvable. The following sections of Virginia's general provisions 
are cross-referenced and apply to all sources subject to NOX 
RACT: 120-04-0413 Compliance; 120-04-0414 Test methods and procedures; 
120-04-0415 Monitoring; 120-04-016 Notification, records and reporting; 
120-04-0417 Registration; 120-04-0418 Facility maintenance or 
malfunction; and 120-04-0419 Permits. These provisions are all SIP 
approved, and, therefore, section 120-04-0408 satisfies appropriate 
requirements for record-keeping, monitoring and compliance.

D. Exempted Sources

    Provisions found at subdivision C.3.b. of 9 VAC 5-40-311 (formerly 
Appendix T) exempt any steam generating unit, gas turbine, or process 
heater with an annual capacity factor of less than five percent from 
the requirement to demonstrate RACT.
    However, within three months following any calendar year in which 
the capacity factor exceeds five percent, a source becomes subject to 
subsection 120-04-0408 (A) or (B)--which require compliance with a RACT 
limit set presumptively or on a case-by-case basis--and the owner must 
make the notification and submittal required under subsection 120-04-
0408 (D) or (E)--which require notification of applicability status. In 
this case, the compliance date is two years after the Board approves 
the schedule submitted by the source owner. Provisions of subdivision 
C.3.b. also provide that time periods in which a stand-by unit is used 
to provide replacement services for a unit being altered to comply with 
RACT are not to be included in the determination of the annual capacity 
factor for the stand-by unit.
    Provisions found at subdivision C.3.d. of 9 VAC 5-40-311 (formerly 
Appendix T) exempt any stationary internal combustion engine with a 
rated capacity of less than 450 horsepower output from the requirement 
to demonstrate RACT.
    Provisions found at subdivision C.3.e. of 9 VAC 5-40-311 (formerly 
Appendix T) exempt any incinerator with a maximum capacity of less than 
50 tons of waste per day from the requirement to demonstrate RACT.
    Provisions found at subdivision C.3.f. of 9 VAC 5-40-511 (formerly 
Appendix T) exempt any incinerator or thermal or catalytic oxidizer 
used exclusively as air pollution control equipment from the 
requirement to demonstrate RACT.
    Provisions found at subdivision C.3.g. of 9 VAC 5-40-311 exempt any 
generator used solely to supply emergency power to buildings during 
periods when normal power supplies are interrupted and during periods 
of scheduled maintenance from the requirement to demonstrate RACT.
    In a memorandum from G.T. Helms of the Office of Air Quality 
Planning & Standards (OAQPS) to the Regional Air Branch Chiefs, dated 
January 1, 1995, entitled ``De Minimis Values for NOX 
RACT'', EPA provides guidance and technical data that may be used to 
evaluate de minimis levels for various categories of NOX 
sources. Traditionally, regulatory agencies have typically included 
exemptions for very small emission units in volatile organic compound 
(VOC) RACT rules. The reason for the exemption is that control 
requirements at very small units are generally not reasonable, 
considering technological and economic feasibility. In the process of 
adopting rules to meet the NOX RACT requirements of the 
Clean Air Act, many states have included exemptions in their state 
rules for very small or infrequently used NOX emission 
sources similar to the VOC rule exemptions. Total annual emissions from 
certain units at a facility, such as small incinerators, emergency 
generators and peaking units, may be so

[[Page 3894]]

small that it is clear that no controls are reasonably available for 
such units. Based on the description of de minimis level of 
NOX emissions from small units, EPA agrees that it is 
reasonable to exclude the source categories as provided in subdivisions 
C.3.b, C.3.d, C.3.e, C.3.f, and C.3.g of 9 VAC 5-40-311 (formerly 
Appendix T) of Virginia's regulations from RACT requirements.

E. Generic Provisions

    Rule 120-04-0408 requires certain sources to comply with the 
applicable emission limits established in Appendix T (now known as 9 
VAC 5-40-311); or to apply to the Board for an alternative emission 
limit through a source-specific RACT determination process. The 
emission limits of section C of 9 VAC 5-40-311 do not cover all 
categories of NOX sources. Section C specifically enacts 
emission limits for boilers/steam generating units, process heaters and 
gas turbines. Other source categories, such as incinerators, 
reciprocating internal combustion engines, cement manufacturing and 
iron/steel manufacturing are not covered in 9 VAC 5-40-311.
    These sources are not subject to specific, ``up-front'' (i.e. 
immediately ascertainable) emission limitations. Instead, the 
regulations establish a process for the Commonwealth to review and 
approve individual RACT emission limitations proposed by the sources, 
which are then to be submitted to EPA as SIP revisions. Additionally, 
subsection 120-04-0408(B) of Virginia's rule allows sources subject to 
the presumptive limits in Appendix T (now known as 9 VAC 5-40-311) to 
propose alternative RACT on a case-by-case basis provided they submit 
the proposal by January 1, 1994. The proposal must include technical 
and economic support documentation for the proposed RACT and include a 
schedule for compliance as expeditiously as practical but no later than 
May 31, 1995.
    The Act requires states to implement RACT on all major stationary 
sources. Process-oriented generic regulations, such as those submitted 
by Virginia, which do not include specific and ascertainable emission 
limitations for all major sources, do not by themselves provide 
standards for EPA to approve or disapprove as satisfying the definition 
of RACT. Therefore, the Act's RACT requirements are satisfied only 
after the specific limitations imposed by the Commonwealth on its major 
sources have been submitted to EPA as SIP revisions and approved by EPA 
as RACT for the subject sources.
    In a November 7, 1996 policy memo from Sally Shaver, Director, Air 
Quality Strategies and Standards Division of OAQPS, EPA issued guidance 
for approving state generic RACT regulations, like Virginia's, provided 
certain criteria are met. This guidance does not exempt any major 
source from RACT requirements but instead provides for a de minimis 
deferral of RACT only for the purposes of approving the state's generic 
RACT regulation. The de minimis deferral level is determined by using 
the 1990 NOX emissions, excluding the utility boiler 
NOX emissions. The remaining 1990 non-utility boiler 
emissions are then compared with the amount of non-utility 
NOX emissions that have yet to have RACT approved into the 
SIP. Generally, EPA expects that all utility boiler RACTs will be 
approved prior to application of this de minimis deferral policy and 
possible conversion of the generic RACT conditional approval to full 
approval. EPA does not expect to defer more than 5% of the emissions 
calculated in this manner in order to fully approve Virginia's generic 
NOX RACT regulation. In accordance with the November 1996 
policy, EPA is requiring that all utility boiler RACT determinations be 
approved by EPA and all but a de minimis level of non-utility boiler 
RACT determinations be approved into the SIP before the limited 
approval can be converted to full approval. Full approval of a generic 
RACT regulation under this policy does not change the Commonwealth's 
statutory obligation to implement RACT for all major sources. No major 
NOX source is being exempted from RACT requirements through 
this policy or today's rulemaking.
    Because EPA has not received SIP revisions of source-specific RACT 
determinations for all major sources of NOX subject to RACT 
under the Clean Air Act, EPA can at best, according to the November 7, 
1996 policy memorandum, propose conditional limited approval of the 
NOX RACT generic rule. In support of this proposed 
rulemaking, the Commonwealth committed in a letter dated April 11, 1998 
to submit, as SIP revisions, RACT determinations for all sources 
subject to NOX RACT within 12 months of EPA's final 
conditional approval of the generic rule.

F. Virginia's Audit Privilege Legislation

    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 does not extend 
to documents or information that are: (1) 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 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. * * *'' 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, 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.''
    Thus, EPA has determined that Virginia's Privilege and Immunity 
statutes will not preclude the Commonwealth from enforcing its

[[Page 3895]]

program consistent with the federal requirements.

Terms of and Rationale for Conditional Approval

    EPA's is proposing conditional approval of Virginia's 
NOX RACT regulations, based on the Commonwealth's commitment 
to submit for approval into the SIP, the case-by-case RACT proposals 
for all sources subject to RACT requirements currently known to the 
Virginia Department of Environmental Quality (VADEQ). The Commonwealth 
submitted this commitment in a letter to EPA, dated August 11, 1998. 
The case-by-case RACT proposals must be submitted by a date certain 
that is no later than 12 months after the effective date of EPA's final 
conditional approval.
    To fulfill the conditions of this approval, the Commonwealth must, 
by no later than 12 months after the effective date of EPA's final 
conditional approval of the generic NOX RACT SIP, (1) 
certify that is has submitted case-by-case RACT SIPs for all sources 
subject to the RACT requirements currently known to the Department; or 
(2) demonstrate that the emissions from any remaining subject sources 
represent a de minimis level of emissions (as described above). Once 
EPA has determined that the Commonwealth has satisified this condition, 
EPA shall remove the conditional nature of its approval and the 
Virginia NOX RACT regulations will, at that time, retain 
limited approval status. Should the Commonwealth fail to meet the 
conditions specified above, the final conditional limited approval of 
the NOX RACT regulations SIP revision shall convert to a 
disapproval.
    EPA is also proposing limited approval of Virginia's NOX 
RACT regulations, VA Rule 120-08-0408, and the provisions of 9 VAC 5-
40-311 (formerly Appendix T) as requested by the VADEQ. The current 
Virginia SIP does not contain a general requirement that all major 
sources of NOX must implement RACT. While EPA does not 
believe that the Virginia generic NOX RACT regulation 
satisfies the Act's RACT requirements as discussed previously in this 
notice, EPA is also proposing limited approval of the Virginia 
NOX RACT regulations on the basis that they strengthen the 
SIP. The purpose of the proposed approval of the presumptive limits as 
RACT for these categories of sources of NOX is for the 
limited purpose of strengthening the Virginia SIP by adding RACT 
standards for sources of NOX in the Northern Virginia 
Emissions Control Area where none existed before.
    Section 110(k)(4) of the Act allows EPA to propose conditional 
approval of the Virginia RACT regulations based on a commitment by the 
Commonwealth to adopt specific enforceable measures by a date certain 
but no later than 1 year after the effective date of EPA's final 
conditional approval. On August 11, 1998, Virginia submitted a letter 
to EPA committing to submit all case-by-case RACT determinations to EPA 
as SIP revisions within 12 months of final conditional, limited 
rulemaking, including those for sources covered by new source review 
permits, subject to the presumptive RACT limits, and previously 
exempted from the state regulations. Once EPA determines that the 
Commonwealth has satisfied the conditions in this notice, EPA shall 
remove only the conditional nature of its approval and the 
NOX RACT regulations will, at that time, retain limited 
approval status. Once EPA has approved all of the case-by-case RACT 
proposals as SIP revisions, the limited approval will convert to full 
approval. Therefore, even after the conditional status of EPA's 
approval of Virginia's regulations is removed, VADEQ must still 
continue to submit, and have EPA approve into the Virginia SIP, RACT 
requirements for the remaining de minimis amount of emissions. Removal 
of the conditional status to limited approval status in no way changes 
VADEQ's statutory obligation to implement RACT for all major sources. 
Although EPA fully expects that Virginia will meet the conditions set 
forth in this notice, should Virginia fail to meet the conditions in 
this notice, EPA is proposing that the final conditional limited 
approval shall convert to a disapproval.
    EPA is soliciting public comments on the issues discussed in this 
document. These comments will be considered before taking final action. 
Interested parties may participate in the federal rulemaking procedure 
by submitting written comments to the EPA Regional office listed in the 
ADDRESSES section of this document. A more detailed description of the 
state submittal and EPA's evaluation are included in the Technical 
Support Document (TSD) prepared in support of this rulemaking action. A 
copy of the TSD is available, upon request, from the EPA Regional 
Office listed in the ADDRESSES section of this document.

IV. Proposed Action

    EPA is proposing conditional limited approval of the Commonwealth's 
NOX RACT SIP submittal of November 9, 1992, as modified on 
December 11, 1992 and April 11, 1998. EPA is proposing conditional 
limited approval of this SIP revision based on the commitment made by 
Virginia to submit all case-by-case RACT proposals for sources it is 
currently aware of as being subject to the major source NOX 
RACT requirement, and because adding RACT standards for major sources 
of NOX in the Northern Virginia Emissions Control Area where 
none existed before strengthens the SIP. On August 11, 1998, Virginia 
submitted a letter to EPA committing to submit all case-by-case RACT 
determinations to EPA as SIP revisions within 12 months of final 
conditional, limited rulemaking.

V. Administrative Requirements

A. Executive Orders 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from review under E.O. 12866, entitled ``Regulatory 
Planning and Review.''

B. Executive Order 12875

    Under E.O. 12875, EPA may not issue a regulation that is not 
required by statute and that creates a mandate upon a state, local, or 
tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If EPA complies by consulting, E.O. 12875 requires EPA to 
provide to the Office of Management and Budget a description of the 
extent of EPA's prior consultation with representatives of affected 
state, local, and tribal governments, the nature of their concerns, 
copies of written communications from the governments, and a statement 
supporting the need to issue the regulation. In addition, E.O. 12875 
requires EPA to develop an effective process permitting elected 
officials and other representatives of state, local, and tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory proposals containing significant unfunded mandates.'' 
Today's rule does not create a mandate on state, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 1(a) of E.O. 12875 
do not apply to this rule.

C. Executive Order 13045

    Executive Order 13045, entitled ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997), applies to any rule that the EPA determines (1) is 
``economically significant,'' as defined under Executive Order 12866, 
and (2) the environmental

[[Page 3896]]

health or safety risk addressed by the rule has a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This proposed rule is not subject to Executive Order 13045 because 
it is not an economically significant regulatory action as defined by 
Executive Order 12866, and it does not address an environmental health 
or safety risk that would have a disproportionate effect on children.

D. Executive Order 13084

    Under E.O. 13084, EPA may not issue a regulation that is not 
required by statute, that significantly affects or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments. If EPA complies by 
consulting, E.O. 13084 requires EPA to provide to the Office of 
Management and Budget, in a separately identified section of the 
preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 13084 
requires EPA to develop an effective process permitting elected and 
other representatives of Indian tribal governments ``to provide 
meaningful and timely input in the development of regulatory policies 
on matters that significantly or uniquely affect their communities.'' 
Today's rule does not significantly or uniquely affect the communities 
of Indian tribal governments. This action does not involve or impose 
any requirements that affect Indian Tribes. Accordingly, the 
requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. This proposed rule will not have a significant impact on 
a substantial number of small entities because SIP approvals under 
sections 110 and 301, and subchapter I, part D of the CAA do not create 
any new requirements but simply approve requirements that the State is 
already imposing. Therefore, because the Federal SIP approval does not 
impose any new requirements, I certify that it does not have a 
significant impact on any small entities affected. Moreover, due to the 
nature of the Federal-State relationship under the Clean Air Act, 
preparation of a flexibility analysis would constitute Federal inquiry 
into the economic reasonableness of state action. The Clean Air Act 
forbids EPA to base its actions concerning SIPs on such grounds. Union 
Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 
7410(a)(2).
    If the conditional approval is converted to a disapproval under 
section 110(k), based on the State's failure to meet the commitment, it 
will not affect any existing state requirements applicable to small 
entities. Federal disapproval of the state submittal does not affect 
its state-enforceability. Moreover, EPA's disapproval of the submittal 
does not impose a new Federal requirement. Therefore, I certify that 
this proposed disapproval action does not have a significant impact on 
a substantial number of small entities because it does not remove 
existing requirements nor does it substitute a new federal requirement.

F. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
annual costs to State, local, or tribal governments in the aggregate; 
or to private sector, of $100 million or more. Under Section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the proposed approval action of Virginia's 
NOX RACT regulations do not include a Federal mandate that 
may result in estimated annual costs of $100 million or more to either 
State, local, or tribal governments in the aggregate, or to the private 
sector. This Federal action approves pre-existing requirements under 
State or local law, and imposes no new requirements. Accordingly, no 
additional costs to State, local, or tribal governments, or to the 
private sector, result from this action.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Nitrogen dioxide, 
Ozone.

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

    Dated: January 7, 1999.
W. Michael McCabe,
Regional Administrator, Region III.
[FR Doc. 99-1648 Filed 1-25-99; 8:45 am]
BILLING CODE 6560-50-P