Federal Register / Vol. 69, No. 209 / Friday, October 29, 2004 / Rules and Regulations 63075

MISSOURI-LEAD

Designated area 

Designation Classification 

Date Type Date Type 

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Iron County (part) Within boundaries of Liberty and Arcadia Townships.October 29, 2004 ....... Attainment. 

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[FR Doc. 04–24134 Filed 10–28–04; 8:45 am] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 62

[R03–OAR–2004–VA–0002a; FRL–7831–5] 

Approval and Promulgation of State 

Air Quality Plans for Designated 

Facilities and Pollutants, 

Commonwealth of Virginia; Control of 

Municipal Waste Combustor 

Emissions From Large Existing 

Municipal Solid Waste Combustor 

Units

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is taking direct final 

action to approve the Commonwealth of 

Virginia Department of Environmental 

Quality (DEQ) municipal waste 

combustor plan (the plan) for 

implementing emission guideline (EG) 

requirements promulgated under the 

Clean Air Act (the Act). The plan 

establishes emission limits, monitoring, 

operating, and recordkeeping 

requirements for existing large MWC 

with a unit capacity of more than 250 

tons per day (TPD) of municipal solid 

waste (MSW). An existing MWC unit is 

defined as one for which construction 

commenced on or before September 20, 

1994.

DATES: This rule is effective December 

28, 2004 without further notice, unless 

EPA receives adverse written comment 

by November 29, 2004. If EPA receives 

such comments, it will publish a timely 

withdrawal of the direct final rule in the 

Federal Register and inform the public 

that the rule will not take effect.

ADDRESSES: Submit your comments, 

identified by Regional Material in 

EDocket (RME) ID Number R03–OAR–

2004–VA–0002 by one of the following 

methods: 

A. Federal eRulemaking Portal:

http://www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

B. Agency Web Site: http://

www.docket.epa.gov/rmepub/ RME, 

EPA’s electronic public docket and 

comment system, is EPA’s preferred 

method for receiving comments. Follow 

the on-line instructions for submitting 

comments. 

C. E-mail: http://

wilkie.walter@epa.gov.

D. Mail: R03–OAR–2004–VA–0002,

Walter Wilkie, Chief, Air Quality 

Analysis, Mailcode 3AP22, U.S. 

Environmental Protection Agency, 

Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

E. Hand Delivery: At the previouslylisted 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 

RME ID No. R03–OAR–2004–VA–0002. 

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.docket.epa.gov/rmepub/, 

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 RME, 

regulations.gov or e-mail. The EPA RME 

and the Federal regulations.gov Web 

sites are 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 RME or 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 

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 RME 

index at http://www.docket.epa.gov/

rmepub/. 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 RME 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:

James B. Topsale, P.E., at (215) 814–

2190, or by e-mail at 

topsale.jim@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background 

On December 19, 1995, pursuant to 

sections 111 and 129 of the Clean Air 

Act (Act), EPA promulgated new source 

performance standards (NSPS) 

applicable to new MWC units and 

emission guidelines (EG) applicable to 

existing MWC units. The NSPS and EG 

are codified at 40 CFR part 60, subparts 

Eb and Cb, respectively. See 60 FR 

65387. Subparts Cb and Eb regulate the 

following: particulate matter, opacity, 

sulfur dioxide, hydrogen chloride, 

oxides of nitrogen, carbon monoxide, 

lead, cadmium, mercury, and dioxins 

and dibenzofurans.

63076 Federal Register / Vol. 69, No. 209 / Friday, October 29, 2004 / Rules and Regulations 

1An additional EG amendment was promulgated 

in the Federal Register (66 FR 36473) on July 12, 

2001. However, the amendment is known to impact 

only one affected facility in Georgia.

However, on April 8, 1997, the United 

States Court of Appeals for the District 

of Columbia Circuit vacated subparts Cb 

and Eb as they apply to MWC units with 

combustion capacity less than or equal 

to 250 tons per day of MSW (small 

MWCs), consistent with their opinion in 

Davis County Solid Waste Management 

and Recovery District v. EPA, 101 F.3d 

1395 (D.C. Cir. 1996), as amended, 108 

F.3d 1454 (D.C. Cir. 1997). As a result, 

subparts Cb and Eb now apply only to 

MWC units with individual unit 

combustion capacity of more than 250 

tons per day of MSW (i.e., large MWC 

units). This change was published in the 

Federal Register (62 FR 45116) on 

August 25, 1997. In addition, 

subsequent clarifying amendments were 

published in the Federal Register (66 

FR 57824) on November 16, 2001.1

Section 129(b)(2) of the Act requires 

States to submit to EPA for approval 

State Plans that implement and enforce 

the EG. State Plans must be at least as 

protective as the EG, and become 

Federally enforceable as a section 

111(d)/129 plan upon approval by EPA. 

The procedures for adoption and 

submittal of State Plans are codified in 

40 CFR part 60, subpart B. 

As required by section 129(b)(3) of the 

Act, on November 12, 1998 EPA 

promulgated a Federal implementation 

plan (FIP), amended May 24, 2000, for 

large MWC units that commenced 

construction on or before September 20, 

1994. The FIP (40 CFR part 62, subpart 

FFF, 63 FR 63191 and 65 FR 33461) is 

a set of maximum achievable control 

technology (MACT) requirements that 

implement the 1995 large MWC 

emission guidelines for states, such as 

Virginia, without an approved plan. The 

FIP fills a Federal enforceability gap 

until state plans are approved and 

ensures that the affected MWC units 

stay on track to complete pollution 

control equipment retrofit schedules in 

order to meet the final statutory 

compliance date of December 19, 2000. 

II. Review of Virginia’s MWC Plan 

EPA has reviewed the Virginia plan, 

submitted on August 18, 2003, for 

existing large MWC units in the context 

of the requirements of 40 CFR part 60, 

and subparts B and Cb, as amended. 

State plans must include the following 

essential elements: (1) Identification of 

legal authority, (2) identification of 

mechanism for implementation, (3) 

inventory of affected facilities, (4) 

emissions inventory, (5) emissions 

limits, (6) compliance schedules, (7) 

testing, monitoring, recordkeeping, and 

reporting, (8) public hearing records, 

and (9) annual state progress reports on 

facility compliance. 

A. Identification of Legal Authority 

Title 40 CFR 60.26 requires the plan 

to demonstrate that the State has legal 

authority to adopt and implement the 

emission standards and compliance 

schedules. The DEQ has demonstrated 

that it has the legal authority to adopt 

and implement the emission standards 

governing large MWC units. DEQ’s legal 

authority is provided in the Air 

Pollution Control Law of Virginia, Title 

10.1, Chapter 13, of the Code of 

Virginia. This authority is discussed in 

the plan narrative and a July 1, 1998 

letter from the Virginia Office of the 

Attorney General to the DEQ. This 

meets the requirements of 40 CFR 60.26. 

B. Identification of Enforceable State 

Mechanisms for Implementing the Plan 

The subpart B provision at 40 CFR 

60.24(a) requires that state plans include 

emissions standards, defined in 40 CFR 

60.21(f) as ‘‘a legally enforceable 

regulation setting forth an allowable rate 

of emissions into the atmosphere, or 

prescribing equipment specifications for 

control of air pollution emissions.’’ The 

Commonwealth of Virginia through the 

DEQ, has adopted State Air Pollution 

Control Board Regulations (Rule 4–54 

and other supporting air program rules) 

to control large MWC emissions. Rule 

4–54, Emission Standards for Large 

MWC, became effective on August 4, 

1999, and was subsequently amended 

on February 1, 2002, and July 1, 2003. 

Other applicable and effective 

supporting air program rules were 

identified and submitted to EPA on 

August 11, 2003 and April 6, 2004. 

These rules collectively met the 

requirement of 40 CFR 60.24(a) to have 

a legally enforceable emission standard.

C. Inventory of Affected MWC Units 

Title 40 CFR 60.25(a) requires the 

plan to include a complete source 

inventory of all affected facilities (i.e., 

existing MWC units with a capacity 

greater than 250 TPD). The DEQ has 

identified three (3) affected facilities. 

Each have an MWC unit capacity greater 

than 250 TPD. The affected facilities are 

Covanta Fairfax with four units, Covanta 

Alexandria with three units, and the 

Southeastern Public Service Authority 

with four units. 

D. Inventory of Emissions From Affected 

MWC Units 

Title 40 CFR 60.25(a) requires that the 

plan include an emissions inventory 

that estimates emissions of the pollutant 

regulated by the EG. Emissions from 

MWC units contain organics (dioxin/

furans), metals (cadmium, lead, 

mercury, particulate matter, opacity), 

and acid gases (hydrogen chloride, 

sulphur dioxide, and nitrogen oxides). 

For each MWC facility, the DEQ plan 

contains MWC unit emissions rates 

estimates that are given in an acceptable 

format. This meets the emission 

inventory requirements of 40 CFR 

60.25(a). 

E. Emissions Limitations for MWC Units 

Title 40 CFR 60.24(c) specifies that 

the State plan must include emission 

standards that are no less stringent than 

the EG, except as specified in 40 CFR 

60.24(f) which allows for less stringent 

emission limitations on a case-by-case 

basis if certain conditions are met. 

However, this exception clause is 

superseded by section 129(b)(2) of the 

Act which requires that state plans be 

‘‘at least as protective’’ as the EG , in 

this case 40 CFR part 60, subpart Cb. A 

review of the applicable Rule 4–54 

emissions limitations shows that all are 

‘‘at least as protective’’ as those in the 

EG, as amended. In addition to the 

required section 129 emissions 

limitations, other limitations under Rule 

4–54 (i.e., 9 VAC 5–40–8080, 8100, and 

8100E), relating to odors, toxic 

pollutants (state only requirements), and 

nitrogen oxides (NOX) emissions 

trading, are not within the scope of 

section 129 requirements for plan 

approval. These other emissions 

limitations are not relevant or 

approvable under this plan approval 

action. This is discussed further in 

Section III, Final Action. 

F. Compliance Schedules 

Under 40 CFR 60.24(c) and (e), a state 

plan must include an expeditious 

compliance schedule that owners and 

operators of affected MWCs must meet 

in order to comply with the 

requirements of the plan. Also, Title 40 

CFR 60.39b of the EG provides that 

planning, awarding of contracts, and 

installation of air emission collection 

and control equipment capable of 

meeting the EG requirements must be 

accomplished within 3 years of EPA 

plan approval, but in no case later than 

December 19, 2000. Accordingly, the 

DEQ determined that source compliance 

with the EG emissions limits must be 

achieved on or before December 19, 

2000, as stipulated in the promulgated 

FIP. In order to implement this 

requirement, Rule 4–54, 9 VAC 5–40–

8110, incorporates by reference the 

Federal plan compliance schedule 

provisions of 40 CFR 62.14108 and 

Federal Register / Vol. 69, No. 209 / Friday, October 29, 2004 / Rules and Regulations 63077

62.14109(e) through (m) which establish 

expeditious interim and final 

compliance dates that are consistent 

with the provisions of 40 CFR 60.24(c) 

and (e), and 40 CFR 60.39b of subparts 

B and Cb, respectively. The state plan 

meets the applicable Federal 

compliance schedule requirements. 

G. Testing, Monitoring, Recordkeeping, 

and Reporting Requirements 

The provisions of 40 CFR 60.24(b) and 

60.25(b) stipulate facility testing, 

monitoring recordkeeping and reporting 

requirements for state plans. Also, 

related EG provisions 40 CFR 60.38b 

and 60.39b cross reference applicable 

NSPS (subpart Eb) requirements that 

state plans must include. The DEQ 

regulation meets the subpart B 

requirements of 40 CFR 60.24 and 60.25; 

and the related subpart Cb provisions of 

40 CFR 60.38b and 60.39b. However, 

when considering that Rule 4–54 

references 40 CFR 60.11(e), which 

allows use of continuous opacity 

monitoring (COM) data, a point of 

clarity is in order. The opacity 

limitations promulgated under subparts 

Cb and Eb were based on stack test data 

using EPA Method 9. Accordingly, COM 

data is used only as an indicator for 

corrective actions, if necessary, or as the 

basis for a compliance retest of the 

MWC facility. This matter is discussed 

and clarified in EPA’s Background 

Information Document (EPA–453/R–95–

0136) for the MWC rules. 

H. A Record of Public Hearing on the 

State Plan 

Public hearings on the plan were held 

October 17, 2000 and July 23, 2003. 

Applicable portions of Rule 4–54 

became effective initially on August 4, 

1999, with subsequent amendments on 

February 1, 2002 and July 1, 2003. The 

state provided evidence of complying 

with public notice and other hearing 

requirements, including a record of 

public comments received. The DEQ has 

met the 40 CFR 60.23 requirement for a 

public hearing on the plan. 

I. Annual State Progress Reports to EPA 

The DEQ will submit to EPA on an 

annual basis a report which details the 

progress in the enforcement of the plan 

in accordance with 40 CFR 60.25. 

Accordingly, the DEQ will submit 

reports on progress in plan enforcement 

to EPA on an annual (calendar year) 

basis, commencing with the first full 

report period after plan approval. 

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 § 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.’’

Therefore, EPA has determined that 

Virginia’s Privilege and Immunity 

statutes will not preclude the 

Commonwealth from enforcing its 

section 111(d)/129 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. 

III. Final Action 

Based upon the rationale discussed 

above and in further detail in the 

technical support document (TSD) 

associated with this action, EPA is 

approving the Virginia plan, excluding 

the non-applicable rule provisions, as 

identified in the DEQ letters of August 

11, and 18, 2003; and April 6, and 

August, 25, 2004 to EPA. The identified 

exclusions, for example, include Rule 

4–54 provisions relating to odors, toxic 

pollutants (state only requirements), 

NOX emissions trading, and MWC 

operator requirements under the 

Virginia Board for Waste Management 

Facility Operators. As a result of this 

EPA approval action, the Federal plan is 

no longer applicable, except for the 

compliance schedule provisions of 40 

CFR 62.14108 and 62.14109(e) through 

(m) that are incorporated by reference 

into Rule 4–54. Also, with respect to 

certain plan decisions, EPA retains 

discretionary authority for several 

actions as listed in the August 18, 2003 

plan narrative, paragraph H. As 

provided by 40 CFR 60.28(c), any 

revisions to the Virginia plan or 

supporting regulations will not be 

considered part of the applicable plan 

until submitted by the Commonwealth 

of Virginia in accordance with 40 CFR 

60.28(a) or (b), as applicable, and until 

approved by EPA in accordance with 40 

CFR part 60, subpart B, requirements. 

EPA is publishing this rule without 

prior proposal because the Agency 

63078 Federal Register / Vol. 69, No. 209 / Friday, October 29, 2004 / Rules and Regulations 

views this as a noncontroversial 

amendment and anticipates no adverse 

comments. This action simply reflects 

already existing Federal requirement for 

state air pollution control agencies and 

existing large MWC units that are 

subject to the provisions of 40 CFR part 

60, subparts B, and Cb; and 40 CFR part 

62, subpart FFF, as applicable. 

However, in the ‘‘Proposed Rules’’

section of today’s Federal Register, EPA 

is publishing a separate document that 

will serve as the proposal to approve the 

section 111(d)/129 plan should relevant 

adverse or critical comments be filed. 

This rule will be effective December 28, 

2004 without further notice unless EPA 

receives adverse comments by 

November 29, 2004. If EPA receives 

adverse comments, EPA will publish a 

timely withdrawal in the Federal 

Register informing the public that the 

rule did not take effect. EPA will 

address all public comments in a 

subsequent final rule based on the 

proposed rule. The EPA will not 

institute a second comment period on 

this action. Any parties interested in 

commenting must do so at this time. 

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 

(Public Law 104–4). This rule also does 

not have tribal implications because it 

will 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). This 

action also does not have Federalism 

implications because it does 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). This action merely 

approves 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 rule also is not 

subject to Executive Order 13045 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, April 23, 1997), 

because it is not economically 

significant.

In reviewing section 111(d)/129 plan 

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 

111(d)/129 plan submission for failure 

to use VCS. It would thus be 

inconsistent with applicable law for 

EPA, when it reviews a 111(d)/129 plan 

submission, to use VCS in place of a 

111(d)/129 plan 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. This rule 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. Section 804 

exempts from section 801 the following 

types of rules: (1) Rules of particular 

applicability; (2) rules relating to agency 

management or personnel; and (3) rules 

of agency organization, procedure, or 

practice that do not substantially affect 

the rights or obligations of non-agency 

parties. 5 U.S.C. 804(3). EPA is not 

required to submit a rule report 

regarding today’s action under section 

801 because this is a rule of particular 

applicability establishing sourcespecific requirements for three (3) 

specific facilities. 

C. Petitions for Judicial Review 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by December 28, 

2004. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this rule 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 the 

Virginia section 111(d)/129 plan for 

large MWC 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, 

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: September 27, 2004. 

Thomas C. Voltaggio, 

Acting Regional Administrator, Region III.

■ 40 CFR part 62 is amended as follows:

PART 62—[AMENDED]

■ 1. The authority citation for part 62 is 

revised to read as follows:

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

Subpart VV—Virginia

■ 2. Add a center heading, and 

§§ 62.11640, 62.11641, and 62.11642 to 

subpart VV to read as follows:

EMISSIONS FROM EXISTING LARGE 

MUNICIPAL WASTE

COMBUSTOR (MWC) UNITS—

SECTION 111(d)/129 PLAN

§ 62.11640 Identification of plan. 

Section 111(d) /129 plan for large 

MWC units with a capacity greater than 

250 tons per day (TPD) and the 

associated Virginia Air Pollution 

Control Board Regulations (Rule 4–54, 

and other supporting rules identified in 

the plan), submitted to EPA on August 

18, 2003, including supplemental 

information submitted on August 11 

Federal Register / Vol. 69, No. 209 / Friday, October 29, 2004 / Rules and Regulations 63079

and September 30, 2003; and April 6, 

and August 25, 2004.

§ 62.11641 Identification of sources. 

The affected facility to which the plan 

applies is each large MWC unit for 

which construction commenced on or 

before September 20, 1994.

§ 62.11642 Effective date. 

The effective date of the plan for large 

MWC units is December 28, 2004.

[FR Doc. 04–24240 Filed 10–28–04; 8:45 am] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 131

[OW–2004–0006; FRL–7825–1] 

Water Quality Standards; Withdrawal 

of Certain Federal Water Quality 

Criteria Applicable to Alaska, 

Arkansas, and Puerto Rico

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is taking final action to 

amend the Federal regulations to 

withdraw certain water quality criteria 

applicable to Alaska, Arkansas, and 

Puerto Rico. In 1992, EPA promulgated 

Federal regulations, through the 

National Toxics Rule (‘‘NTR’’), 

establishing water quality criteria for 

toxic pollutants for 12 states and two 

territories, including Alaska, Arkansas, 

and Puerto Rico. These two states and 

one territory have now adopted, and 

EPA has approved, certain water quality 

criteria included in the NTR. Since 

Alaska, Arkansas, and Puerto Rico now 

have criteria, effective under the Clean 

Water Act, for the same priority toxic 

pollutants in the NTR, EPA has 

determined that the Federally 

promulgated criteria are no longer 

needed for these pollutants. In today’s 

action, EPA is amending the Federal 

regulations to withdraw those certain 

criteria applicable to Alaska, Arkansas, 

and Puerto Rico. EPA is withdrawing its 

criteria without a notice and comment 

rulemaking because the adopted criteria 

are no less stringent than Federal 

criteria (see 65 FR 19659, April 12, 

2000).

DATES: This final rule is effective on 

October 29, 2004.

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. OW–2004–0006. All documents in 

the docket are listed in the EDOCKET 

index at http://www.epa.gov/edocket. 

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 

EDOCKET or in hard copy at the 

following: The administrative record for 

the withdrawal of Alaska’s federally 

promulgated criteria is also available for 

public inspection at EPA Region 10, 

Office of Water, 1200 Sixth Avenue, 

Seattle, WA 98101, during normal 

business hours of 8 a.m. to 4:30 p.m. 

Pacific time. The administrative record 

for the withdrawal of Arkansas’s 

federally promulgated criteria is also 

available for public inspection at EPA 

Region 6, Water Quality Protection 

Division, 1445 Ross Avenue, Dallas, TX 

75202, during normal business hours of 

7:30 a.m. to 11 a.m. and 1 p.m. to 4:30 

p.m. central time. The administrative 

record for the withdrawal of Puerto 

Rico’s Federally promulgated criteria is 

also available for public inspection at 

EPA Region 2, 290 Broadway, New 

York, NY 10007, during normal 

business hours of 9 a.m. to 4:30 p.m. 

eastern time Monday through Thursday, 

and 9 a.m.–1 p.m. eastern time on 

Friday.

FOR FURTHER INFORMATION CONTACT: For 

questions regarding this action with 

respect to Alaska, contact Sally Brough 

with EPA’s Region 10 at 206–553–1295. 

For questions regarding this action with 

respect to Arkansas, contact Russell 

Nelson with EPA’s Region 6 at 214–

665–6646. For questions regarding this 

action with respect to Puerto Rico, 

contact Wayne Jackson with EPA’s 

Region 2 at 212–637–3807. For general 

and administrative concerns, contact 

Stephanie Thornton at EPA 

Headquarters, Office of Water (4305T), 

1200 Pennsylvania Avenue, NW., 

Washington, DC 20460 (202–566–0606).

SUPPLEMENTARY INFORMATION: 

I. General Information 

No one is regulated by this rule. This 

rule withdraws certain Federal water 

quality criteria applicable to Alaska, 

Arkansas, and Puerto Rico. 

II. Background 

In 1992, EPA promulgated the 

‘‘National Toxics Rule’’ (‘‘NTR’’) to 

establish numeric water quality criteria 

for 12 states and two Territories 

(hereafter ‘‘States’’) that had failed to 

comply fully with section 303(c)(2)(B) of 

the Clean Water Act (‘‘CWA’’) (57 FR 

60848, December 22, 1992). The criteria, 

codified at 40 CFR 131.36, became the 

applicable water quality standards in 

those 14 jurisdictions for all purposes 

and programs under the CWA effective 

February 5, 1993. 

As described in the preamble to the 

final NTR, when a State adopts, and 

EPA approves, water quality criteria that 

meet the requirements of the CWA, EPA 

will issue a rule amending the NTR to 

withdraw the Federal criteria applicable 

to that State. If the State’s criteria are no 

less stringent than the promulgated 

Federal criteria, EPA will withdraw its 

criteria without notice and comment 

because additional comment on the 

criteria is unnecessary (see 65 FR 19659, 

April 12, 2000). However, if a State 

adopts criteria that are less stringent 

than the Federally-promulgated criteria, 

but which the Agency judges to meet 

the requirements of the Act, EPA will 

seek public comment before 

withdrawing the Federally-promulgated 

criteria (see 57 FR 60860, December 22, 

1992). Section 553 of the Administrative 

Procedure Act, 5 U.S.C. 553(b)(B), 

provides that, when an agency for good 

cause finds that notice and public 

comment procedures are impracticable, 

unnecessary or contrary to the public 

interest, the agency may issue a rule 

without providing notice and 

opportunity for public comment. 

There is good cause for making 

today’s rule final without prior proposal 

and comment because, being identical 

or more stringent, the States’ criteria are 

no less stringent than the Federal 

regulations. For the same reason, and 

because this rule relieves a Federal 

restriction, good cause exists to waive 

the requirement for a 30-day period 

before the amendment becomes 

effective. Therefore, the amendment is 

immediately effective. This rule does 

not remove any water quality 

protections. It removes a Federal 

regulation that duplicates State 

regulation. 

Alaska 

On March 30 and April 27, 1999, 

Alaska adopted revisions to its surface 

water quality standards (18 AAC 70). 

Alaska submitted the revisions to EPA 

for approval by letter dated May 10, 

1999, and EPA received the revisions on 

May 13, 1999. 

EPA Region 10 approved the State’s 

freshwater and marine water aquatic life 

criteria for certain NTR pollutants on 

September 28, 2001, because they were 

identical to the NTR values and were 

consistent with both the CWA and 

EPA’s implementing regulations at 40 

CFR part 131. These pollutants are 

Nickel (acute), Selenium (acute and