13254 Federal Register / Vol. 86, No. 43 / Monday, March 8, 2021 / Proposed Rules 

substantially in excess of the underlying 

decision in the matter and whether the 

Secretary’s demand was or was not 

unreasonable. That determination shall 

be based upon all the facts and 

circumstances of the case. 

(c) Awards. The judge presiding over 

an EAJA proceeding or the Commission 

on review may reduce the amount to be 

awarded, or deny any award, to the 

extent that the party during the course 

of the proceedings engaged in conduct 

which unduly and unreasonably 

protracted the final resolution of the 

matter in controversy. 

(1) Awards shall be based on rates 

customarily charged by persons engaged 

in the business of acting as attorneys, 

agents and expert witnesses, even if the 

services were made available without 

charge or at a reduced rate to the 

applicant. 

(2) An award for the fee of an attorney 

or agent under this part shall not exceed 

the hourly rate specified in 5 U.S.C. 

504(b)(1)(A), except to account for 

inflation since the last update of the 

statute’s maximum award upon the 

request of the applicant as documented 

in the application pursuant to 

§ 2204.303. An award to compensate an 

expert witness shall not exceed the 

highest rate at which the Secretary pays 

expert witnesses. However, an award 

may include the reasonable expenses of 

the attorney, agent or witness as a 

separate item, if the attorney, agent or 

witness ordinarily charges clients 

separately for such expenses. 

(3) In determining the reasonableness 

of the fee sought for an attorney, agent, 

or expert witness, the following shall be 

considered: 

(i) If the attorney, agent, or witness is 

in private practice, his or her customary 

fee for similar services, or, if an 

employee of the applicant, the fully 

allocated cost of the services; 

(ii) The prevailing rate for similar 

services in the community in which the 

attorney, agent, or witness ordinarily 

perform services; 

(iii) The time actually spent in the 

representation of the applicant; 

(iv) The time reasonably spent in light 

of the difficulty or complexity of the 

issues in the proceeding; and 

(v) Such other factors as may bear on 

the value of the services provided. 

(4) The reasonable cost of any study, 

analysis, engineering report, test, 

project, or similar matter prepared on 

behalf of the party may be awarded, to 

the extent that the charge for the service 

does not exceed the prevailing rate for 

similar services, and the study or other 

matter was necessary for preparation of 

the applicant’s case. 

§ 2204.407 Commission review. 

Either the applicant or the Secretary 

may seek review of the judge’s decision 

on the fee application, and the 

Commission may grant such a petition 

for review or direct review of the 

decision on the Commission’s own 

initiative. Review by the Commission 

shall be in accordance with §§ 2200.91 

and 2200.92 of this chapter. 

§ 2204.408 Judicial review. 

Judicial review of final decisions on 

awards may be sought as provided in 5 

U.S.C. 504(c)(2). 

§ 2204.409 Stay of decision concerning 

award. 

Any proceedings on an application for 

fees under this part shall be 

automatically stayed until the adversary 

adjudication has become a final 

disposition. 

§ 2204.410 Waiver. 

After reasonable notice to the parties, 

the judge or the Commission may waive, 

for good cause shown, any provision 

contained in this part as long as the 

waiver is consistent with the terms and 

purpose of the EAJA. 

§ 2204.411 Payment of award. 

An applicant seeking payment of an 

award shall submit to the officer 

designated by the Secretary a copy of 

the Commission’s final decision 

granting the award, accompanied by a 

certification that the applicant will not 

seek review of the decision in the 

United States courts. 

Cynthia L. Attwood, 

Chair. 

[FR Doc. 2021–04140 Filed 3–5–21; 8:45 am] 

BILLING CODE 7600–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2020–0596; FRL10019–52– 

Region 3] 

Air Plan Approval; Virginia; Revised 

RACT Permit for Roanoke Electric 

Steel/Steel Dynamics, Inc. 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve a 

state implementation plan (SIP) revision 

submitted by the Commonwealth of 

Virginia. The revision consists of 

amendments to a federally enforceable 

state operating permit (FESOP) which 

was previously incorporated into the 

Virginia SIP in order to implement 

reasonably available control technology 

(RACT) for nitrogen oxide (NOX) 

emissions from Steel Dynamics, Inc. 

(hereafter ‘‘SDI,’’ formerly Roanoke 

Electric Steel). This action is being 

taken under the Clean Air Act (CAA). 

DATES: Written comments must be 

received on or before April 7, 2021. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R03– 

OAR–2020–0596 at https://

www.regulations.gov, or via email to 

gordon.mike@epa.gov. For comments 

submitted at Regulations.gov, follow the 

online instructions for submitting 

comments. Once submitted, comments 

cannot be edited or removed from 

Regulations.gov. For either manner of 

submission, EPA may publish any 

comment received to its public docket. 

Do not submit electronically any 

information you consider to be 

confidential business information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. EPA will generally not consider 

comments or comment contents located 

outside of the primary submission (i.e., 

on the web, cloud, or other file sharing 

system). For additional submission 

methods, please contact the person 

identified in the FOR FURTHER

INFORMATION CONTACT section. For the 

full EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

https://www.epa.gov/dockets/ 

commenting-epa-dockets. 

FOR FURTHER INFORMATION CONTACT: 

David Talley, Planning & 

Implementation Branch (3AD30), Air & 

Radiation Division, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, PA 19103. 

The telephone number is (215) 814– 

2117. Mr. Talley can also be reached via 

electronic mail at talley.david@epa.gov. 

SUPPLEMENTARY INFORMATION: On April 

14, 2020, the Virginia Department of 

Environmental Quality (VADEQ), on 

behalf of the Commonwealth of 

Virginia, formally submitted the 

amended permit as a revision to the 

Virginia SIP. 

I. Background 

Prior to the establishment of 

nonattainment areas for the 1997 8-hour 

ozone national ambient air quality 

standards (NAAQS), EPA developed a 


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1EPA defines RACT as the lowest emission limit 

that a particular source is capable of meeting by the 

application of control technology that is reasonably 

available considering technological and economic 

feasibility. 

program to allow these potential 

nonattainment areas to voluntarily 

adopt local emission control programs 

to avoid air quality violations and 

mandated nonattainment area controls. 

Areas with air quality meeting the 1979 

1-hour ozone NAAQS were eligible to 

participate. In order to participate, state 

and local governments and EPA 

developed and signed a memorandum 

of agreement that describes the local 

control measures the state or local 

community intends to adopt and 

implement to reduce ozone emissions in 

advance of air quality violations. In this 

agreement, also known as an Early 

Action Compact (EAC), the state or local 

communities agree to prepare emission 

inventories and conduct air quality 

modeling and monitoring to support its 

selection of emission controls. Areas 

that participated in the EAC program 

had the flexibility to institute their own 

approach in maintaining clean air and 

protecting public health. Several 

localities in the Winchester and 

Roanoke areas elected to participate in 

the EAC program. The areas that signed 

an EAC were the City of Winchester and 

Frederick County, which comprised the 

Northern Shenandoah Valley EAC; and 

the cities of Roanoke and Salem, and the 

counties of Roanoke and Botetourt, 

which comprised the Roanoke EAC. 

VADEQ’s approach to implementing the 

EAC was that RACT1 be applied to 

sources of NOX and volatile organic 

compounds (VOCs) within those 

localities that were otherwise not 

subject to RACT. The Roanoke Electric 

Steel Corporation, currently SDI, was 

one such source. 

II. Summary of SIP Revision and EPA 

Analysis 

On April 27, 2005, EPA approved a 

SIP revision for the Commonwealth of 

Virginia which incorporated provisions 

from a federally enforceable state 

operating permit into the Virginia SIP in 

order to apply RACT to several units at 

SDI (Virginia permit registration No. 

20131, issued December 22, 2004; 

hereafter, ‘‘2004 Permit’’). See 70 FR 

21621. Virginia’s April 14, 2020 

submittal includes a revised operating 

permit for SDI which amends the 2004 

permit to account for changes in 

operation at the facility, including the 

shut-down of a number of units. The 

2004 permit included operational 

requirements and NOX emissions limits 

for the equipment listed in Table 1: 

TABLE 1—EQUIPMENT LIST AND NOX

LIMITS FROM 2004 PERMIT

Unit NOX emission limit 

Tundish Preheaters (2) ... 0.25 pounds (lb) NOX/ 

million British thermal 

unit (BTU). 

Ladle Preheaters (2) ....... 0.25 lb NOX/million BTU. 

Electric Arc Furnace #4 .. Operational Limits Only. 

Electric Arc Furnace #5 .. 37.8 lb NOX/hour. 

Ladle Metallurgical Station #5.6.0 lb NOX/hour. 

Billet Reheat Furnace #1 53.1 lb NOX/hour. 

Billet Reheat Furnace #2 39.9 lb NOX/hour. 

Since the issuance of the 2004 permit 

(and EPA’s subsequent SIP approval), 

operations at the facility have changed, 

requiring a revision of both the 

operating permit and the operating 

permit provisions incorporated into the 

SIP. At the time the 2004 permit was 

issued, SDI had received a 

preconstruction permit for the 

construction of billet reheat furnace 

(BRF) #2 to replace BRF #1. The 

conditions of that preconstruction 

permit were incorporated into the 2004 

permit, and ultimately into the Virginia 

SIP. However, BRF #2 was never 

constructed, so the associated NOX

limits have been removed from the 

operating permit. Electric arc furnace 

(EAF) #4 was removed, as was BRF #1. 

The only remaining units at the facility 

that are subject to the source specific 

NOX RACT limits of the 2004 permit are 

EAF #5 and the Ladle Metallurgical 

Station (LMS) #5. The other units have 

been removed, replaced with equipment 

that was not subject to RACT, or as was 

the case with BRF #2, never 

constructed. EAF #5 and LMS #5 remain 

subject to the same limits as were in the 

original permit. The RACT limits for 

those remaining units have not changed, 

and there are no emissions increases 

associated with either the revised 

permit, or Virginia’s proposed SIP 

revision. The permit, and ultimately the 

SIP, are simply being revised to account 

for the removal of provisions related to 

emissions units that no longer exist. 

III. Proposed Action 

EPA’s review of this material 

indicates that it is consistent with all 

CAA requirements. Additionally, 

because the SIP revision does not allow 

for any increase in emissions, it will not 

interfere with any applicable 

requirement concerning attainment and 

reasonable further progress or any other 

applicable CAA requirement, in 

accordance with CAA section 110(l). 

EPA is proposing to approve Virginia’s 

April 14, 2020 submittal as a revision to 

the Virginia SIP. EPA is soliciting public 

comments on the issues discussed in 

this document. These comments will be 

considered before taking final action. 

IV. General Information Pertaining to 

SIP 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 § 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 


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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. 

V. Incorporation by Reference 

In this document, EPA is proposing to 

include in a final EPA rule regulatory 

text that includes incorporation by 

reference. In accordance with 

requirements of 1 CFR 51.5, EPA is 

proposing to incorporate by reference 

the unredacted portions of Virginia 

stationary source permit to operate, 

registration number 20132, issued to 

Roanoke Electric Steel (D/B/A Steel 

Dynamics, Inc.) on December 22, 2004, 

and revised on March 25, 2020. EPA has 

made, and will continue to make, these 

materials generally available through 

https://www.regulations.gov and at the 

EPA Region III Office (please contact the 

person identified in the FOR FURTHER

INFORMATION CONTACT section of this 

preamble for more information). 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011); 

• Is not an Executive Order 13771 (82 

FR 9339, February 2, 2017) regulatory 

action because it is not a significant 

regulatory action under Executive Order 

12866. 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• 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); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

The SIP is not approved to apply on 

any Indian reservation land as defined 

in 18 U.S.C. 1151 or in any other area 

where EPA or an Indian tribe has 

demonstrated that a tribe has 

jurisdiction. In those areas of Indian 

country, this rule pertaining to source 

specific NOX limits at SDI does not have 

tribal implications and will not impose 

substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Volatile 

organic compounds. 

Dated: February 18, 2021. 

Diana Esher, 

Acting Regional Administrator, Region III. 

[FR Doc. 2021–04705 Filed 3–5–21; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R10–OAR–2020–0732, FRL–10020– 

07–Region 10] 

Air Plan Approval; WA; Regional Haze 

Best Available Retrofit Technology 

Revision for TransAlta Centralia 

Generation Plant 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve a 

source-specific State Implementation 

Plan (SIP) revision submitted by the 

Washington State Department of 

Ecology (Ecology) on December 18, 

2020. The SIP revision makes changes to 

nitrogen oxide control requirements for 

the TransAlta Centralia Generation 

Plant (TransAlta). These requirements 

were established in an order issued to 

TransAlta by the state to satisfy the 

Clean Air Act Best Available Retrofit 

Technology Requirements (BART) put 

in place by Congress to reduce regional 

haze and restore visibility in national 

parks and wilderness areas. The changes 

submitted by the state are intended to 

improve the operation of pollution 

control equipment at TransAlta while 

continuing to meet BART requirements. 

DATES: Comments must be received on 

or before April 7, 2021. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R10– 

OAR–2020–0732 at https://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from Regulations.gov. 

The EPA may publish any comment 

received to its public docket. Do not 

submit electronically any information 

you consider to be Confidential 

Business Information (CBI) or other 

information whose disclosure is 


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