[Federal Register Volume 78, Number 232 (Tuesday, December 3, 2013)]
[Proposed Rules]
[Pages 72609-72611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-28958]



40 CFR Part 62

[EPA-R03-OAR-2013-0164; FRL-9903-75-Region 3]

Approval and Promulgation of State Air Quality Plans for 
Designated Facilities and Pollutants; Commonwealth of Virginia; Control 
of Emissions From Existing Sewage Sludge Incineration Units

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.


SUMMARY: EPA is proposing to approve a section plan submitted by the 
Commonwealth of Virginia for sewage sludge incineration (SSI) units. 
The section plan contains a state rule for existing SSI units and was 
submitted as a result of the March 21, 2011 promulgation of Federal new 
source performance standards (NSPS) and emission guidelines for SSI 
units. This action is being taken under sections of the Clean Air Act 

DATES: Written comments must be received on or before January 2, 2014.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2013-0164 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. Email: cox.kathleen@epa.gov.
    C. Mail: EPA-R03-OAR-2013-0164, Kathleen Cox, Associate Director, 
Office of Air Permits and Toxics, Mailcode 3AP10, 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

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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-
2013-0164. 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 email. 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 email comment 
directly to EPA without going through www.regulations.gov, your email 
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: Mike Gordon, at (215) 814-2039, or by 
email at gordon.mike@epa.gov.


I. Background

    Section 129 of the CAA requires EPA to establish performance 
standards and emission guidelines for various types of new and existing 
solid waste incineration units. Section 129(b)(2) requires States to 
submit to EPA for approval section 111(d)/129 plans that implement and 
enforce the promulgated emission guidelines. Section 129(b)(3) requires 
EPA to promulgate a federal plan (FP) within two years from the date on 
which the emission guidelines, or revision to the emission guidelines, 
is promulgated. The FP is applicable to affected facilities when the 
state has failed to receive EPA approval of the section 111(d)/129 
plan. The FP remains in effect until the state submits and receives EPA 
approval of its section 111(d)/129 plan. State submittals under CAA 
sections 111(d) and 129 must be consistent with the relevant emission 
guidelines, in this instance 40 CFR part 60, subpart MMMM, and the 
requirements of 40 CFR part 60, subpart B and part 62, subpart A. 
Section 129 of the CAA regulates air pollutants that include organics 
(dioxins/furans), carbon monoxide, metals (cadmium, lead, and mercury), 
hydrogen chloride, sulfur dioxide, nitrogen oxides, and particulate 
matter (which includes opacity).
    On December 12, 2012, the Virginia Department of Environmental 
Quality (VADEQ) submitted to EPA a formal section 111(d)/129 plan for 
SSI units. The submitted section 111(d)/129 plan was in response to the 
March 21, 2011 promulgation of Federal NSPS and emission guidelines 
requirements for SSI units, 40 CFR part 60, subparts LLLL and MMMM, 
respectively (76 FR 15372).

II. Summary of Virginia's Section 111(d)/129 Plan for Existing SSI 

    EPA has reviewed the Virginia section 111(d)/129 plan submittal in 
the context of the requirements of 40 CFR part 60, subparts B and MMMM, 
and part 62, subpart A. In this action, EPA is proposing to determine 
that the submitted section 111(d)/129 plan meets the above-cited 
requirements. Included within the section 111(d)/129 plan are 
regulations under the Virginia Administrative Code (VAC), specifically 
Article 55 of 9VAC5 Chapter 40, entitled ``Emission Standards for 
Sewage Sludge Incineration Units.'' A detailed explanation of the 
rationale behind this proposed approval is available in the Technical 
Support Document (TSD).

III. General Information Pertaining to Section 111(d)/129 Plan 
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 that: (1) Are generated or developed 
before the commencement of a voluntary environmental assessment; (2) 
are prepared independently of the assessment process; (3) demonstrate a 
clear, imminent and substantial danger to the public health or 
environment; or (4) 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 
    Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that 
``[t]o the extent consistent with requirements

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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 
    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 CAA, including, for example, sections 113, 167, 205, 211 or 213, to 
enforce the requirements or prohibitions of the section 111(d)/129 
plan, independently of any state enforcement effort. In addition, 
citizen enforcement under section 304 of the CAA is likewise unaffected 
by this, or any, state audit privilege or immunity law.

IV. Proposed Action

    EPA is proposing to approve the Virginia section 111(d)/129 plan 
for SSI units submitted pursuant to 40 CFR part 60, subpart MMMM. 
Therefore, EPA is proposing to amend 40 CFR part 62, subpart VV to 
reflect this action. This approval is based on the rationale previously 
discussed and in further detail in the TSD associated with this action. 
The scope of the proposed approval of the section 111(d)/129 plan is 
limited to the provisions of 40 CFR parts 60 and 62 for existing SSI 
units, as referenced in the emission guidelines, subpart MMMM.
    The EPA Administrator continues to retain authority for several 
tasks, as stipulated in 40 CFR Sec.  60.5050 as well as the ``Plan 
Provisions'' section of Virginia's section 111(d)/129 plan submittal. 
This retention of federal authority includes the granting of waivers 
for performance tests.

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 (Public Law 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 CAA. This proposed rule 
also is not subject to Executive Order 13045 (62 FR 19885, April 23, 
1997), because it approves a state rule implementing a Federal 
    In reviewing VADEQ's submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. 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 VADEQ submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a VADEQ 
submission, to use VCS in place of a VADEQ submission that otherwise 
satisfies the provisions of the CAA. 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 for the approval of VADEQ's section 111(d)/129 plan 
for SSI units 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 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: November 15, 2013.
W.C. Early,
Acting, Regional Administrator, Region III.
[FR Doc. 2013-28958 Filed 12-2-13; 8:45 am]