[Federal Register Volume 79, Number 61 (Monday, March 31, 2014)]
[Rules and Regulations]
[Pages 17886-17889]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-06963]



40 CFR Part 62

[EPA-R03-OAR-2013-0164; FRL-9908-89-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: The Environmental Protection Agency (EPA).

ACTION: Final rule.


SUMMARY: The Environmental Protection Agency (EPA) is approving a 
section 111(d)/129 plan submitted by the Commonwealth of Virginia for 
sewage sludge incineration (SSI) units. The section 111(d)/129 plan 
contains a state rule for existing SSI units that 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 111(d) and 129 of the Clean 
Air Act (CAA).

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DATES: This final rule is effective on April 30, 2014.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2013-0164. All documents in the docket are listed in 
the www.regulations.gov Web site. Although listed in the electronic 
docket, some information is not publicly available, i.e., confidential 
business information (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 through www.regulations.gov or in hard 
copy 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. 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, (215) 814-2039, or by 
email at [email protected].


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. 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.
    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).
    On December 3, 2013 (78 FR 72609), EPA published a notice of 
proposed rulemaking (NPR) for the Commonwealth of Virginia. In the NPR, 
EPA proposed approval of Virginia's section 111(d)/129 plan for 
existing SSI units. No comments were received on the proposed approval.

II. Summary of Section 111(d)/129 Plan Submittal

    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 finalizing its 
determination that the submitted section 111(d)/129 plan meets the 
above-cited requirements. EPA is also revising 40 CFR Part 62, Subpart 
VV to reflect this approval. A detailed explanation of the rationale 
behind this action is available in the Technical Support Document (TSD) 
for this rulemaking as well as the December 3, 2013 proposal.

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 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 
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 state 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.
    Other specific requirements of Virginia's section 111(d)/129 plan 
for existing SSI units and the rationale for EPA's proposed action are 
explained in the NPR and associated TSD, and will not be restated here. 
No public comments were received on the NPR.

III. Final Action

    EPA is approving Virginia's section 111(d)/129 plan for existing 
sewage sludge incineration units. Therefore, EPA is amending 40 CFR 
part 62,

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subpart VV to reflect this final action. This approval is based on the 
rationale discussed above and in further detail in the TSD associated 
with this action.
    The EPA Administrator continues to retain authority for several 
tasks, as provided in 40 CFR 60.5050 and in Plan Provisions--section J 
of the submittal.

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 (Pub. L. 104-4). This 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 approves 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 rule also is not subject 
to Executive Order 13045 (62 FR 19885, April 23, 1997), because it 
approves a state rule implementing a Federal standard.
    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 
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 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.).

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. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by May 30, 2014. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action 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 Virginia's Section 111(d)/129 plan for 
existing sewage sludge incineration 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, Air pollution control, Incorporation by 
reference, Administrative practice and procedure, Aluminum, 
Fertilizers, Flouride, Intergovernmental relations, Paper and products 
industry, Phosphate, Reporting and recordkeeping requirements, Sulfur 
oxides, Sulfuric acid plants, Waste treatment and disposal.

    Dated: March 13, 2014.
W.C. Early,
Acting Regional Administrator, Region III.

    40 CFR part 62 is amended as follows:


1. The authority citation for part 62 continues to read as follows:

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

Subpart VV--Virginia

2. Subpart VV is amended by adding an undesignated center heading after 
Sec.  62.11642 and by adding Sec. Sec.  62.11650, 62.11651, and 
62.11652 to read as follows:

Emissions From Existing Sewage Sludge Incineration Units--Section 
111(d)/129 Plan

Sec.  62.11650  Identification of plan.

    Section 111(d)/129 plan for existing sewage sludge incineration and 
the associated Virginia Administrative Code (VAC), specifically Article 
55 of 9VAC5 Chapter 40, submitted to EPA on December 12, 2012.

Sec.  62.11651  Identification of sources.

    The affected facility to which the plan applies is each sewage 
sludge incineration unit within the Commonwealth of Virginia that 
commenced construction on or before October 14, 2010.

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Sec.  62.11652  Effective date.

    The effective date of the plan for existing sewage sludge 
incineration units is April 30, 2014.

[FR Doc. 2014-06963 Filed 3-28-14; 8:45 am]