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[Federal Register Volume 79, Number 155 (Tuesday, August 12, 2014)]
[Rules and Regulations]
[Pages 47004-47007]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-18930]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2014-0511; FRL-9915-006-Region 3]

Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Removal of Two Operating Permits and a Consent Agreement for 
the Potomac River Generating Station From the State Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking direct 
final action to approve revisions to the Commonwealth of Virginia State 
Implementation Plan (SIP). The revision removes from the Virginia SIP 
references to two operating permits and a consent agreement for GenOn 
Potomac River, LLC's Potomac River Generating Station (Potomac River), 
which was formerly owned by Potomac Electric Power Company. Potomac 
River has permanently shut down; therefore, the permits and consent 
agreement are no longer applicable and are being removed from the 
Virginia SIP. EPA is approving these revisions in accordance with the 
requirements of the Clean Air Act (CAA).

DATES: This rule is effective on October 14, 2014 without further 
notice, unless EPA receives adverse written comment by September 11, 
2014. 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 Docket ID Number EPA-
R03-OAR-2014-0511 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. Email: fernandez.cristina@epa.gov.
    C. Mail: EPA-R03-OAR-2014-0511, Cristina Fernandez, Associate 
Director, Office of Air Quality Planning, Mailcode 3AP30, 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 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-
2014-0511. 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

[[Page 47005]]

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: Gregory Becoat, (215) 814-2036, or by 
email at becoat.gregory@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    In 1979, EPA promulgated the 1-hour 0.12 parts per million (ppm) 
ground-level ozone national ambient air quality standard (NAAQS). See 
44 FR 8202 (Feb. 8, 1979). The Northern Virginia portion, consisting of 
the counties of Arlington, Fairfax, Loudoun, Prince William, and 
Stafford and the cities of Alexandria, Fairfax, Falls Church, Manassas, 
and Manassas Park in Virginia was originally classified as part of the 
Metropolitan Washington, DC-MD-VA serious nonattainment area (the 
Washington Area). See 40 CFR 81.347. On January 24, 2003 (68 FR 3411), 
EPA determined that the Washington Area failed to attain the 1-hour 
ozone NAAQS by November 15, 1999, as required by section 181(a) of the 
CAA, and the Washington Area was reclassified to a severe ozone 
nonattainment area pursuant to section 181(b)(2) of the CAA.
    As a result of the Washington Area's classification, each state, 
including the Commonwealth of Virginia, was required to submit a SIP 
demonstrating how attainment of the NAAQS would be met. In order to 
demonstrate attainment, the Commonwealth of Virginia implemented state-
specific controls with the goal of limiting emissions of nitrogen 
oxides (NOX) from the area's electric utility plants to 0.15 
pounds per million British Thermal Units (BTUs) of heat (fuel) input to 
the boilers. As a coal-fired electric generating facility that emitted 
volatile organic compounds (VOCs) and NOX, Potomac River, 
located in Alexandria, Virginia, was identified as a source subject to 
control, and a state operating permit was created as a vehicle for 
implementing the control measure. EPA approved this permit into the SIP 
on December 14, 2000 (65 FR 78100).
    Potomac River was also identified as a source subject to reasonably 
available control technology (RACT) requirements. EPA defines RACT as 
``the lowest emission limitation that a particular source is capable of 
meeting by the application of control technology that is reasonably 
available considering technological and economic feasibility.'' See 44 
FR 53761 (Sept. 17, 1979). In order to ensure compliance with the RACT 
requirements for the control of VOCs, a state operating permit was 
issued by the Commonwealth of Virginia Department of Environmental 
Quality (VADEQ) for Potomac River and approved by EPA into the SIP on 
January 2, 2001 (66 FR 8). In order to ensure compliance with the RACT 
requirements for the control of NOX, a consent agreement was 
entered between Virginia and the owner of Potomac River and approved by 
EPA into the SIP on January 2, 2001 (66 FR 8).

II. Summary of SIP Revision

    On May 10, 2013, VADEQ submitted a formal revision to its SIP. The 
SIP revision consists of a request by the Commonwealth to remove from 
the Virginia SIP the two operating permits and consent agreement 
discussed above for Potomac River. On December 21, 2012, GenOn Potomac 
River, LLC and VADEQ signed a mutual determination of permanent 
shutdown of the Alexandria, Virginia facility. The SIP submission 
includes a copy of the signed determination which: (1) Mutually agrees 
that the source is permanently shutdown, (2) establishes that all 
permits for the source in accordance with 9VAC5-20-220 are revoked, (3) 
removes the source from the air emissions inventory, and (4) 
establishes that any future operations must be in accordance with 
Virginia's Prevention of Significant Deterioration (PSD) permit program 
pursuant to 9VAC5 Chapter 80. If Potomac River should resume operation 
in the future, VADEQ may be required at that time to revise its SIP as 
appropriate.

III. Final Action

    EPA is approving the May 10, 2013 submittal from VADEQ that removes 
from the Virginia SIP the two operating permits and consent agreement 
for Potomac River because the source has permanently shutdown and all 
of the source's permits are revoked. EPA believes this revision will 
not interfere with Virginia's attainment or maintenance of any NAAQS. 
EPA is publishing this rule without prior proposal because the Agency 
views this as a noncontroversial amendment and anticipates no adverse 
comment. 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 SIP revision if adverse comments are filed. 
This rule will be effective on October 14, 2014 without further notice 
unless EPA receives adverse comment by September 11, 2014. If EPA 
receives adverse comment, EPA will publish a timely withdrawal in the 
Federal Register informing the public that the rule will not take 
effect. EPA will address all public comments in a subsequent final rule 
based on the proposed rule. EPA will not institute a second comment 
period on this action. Any parties interested in commenting must do so 
at this time.

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.

[[Page 47006]]

    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 
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 
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. Statutory and Executive Order Reviews

A. General Requirements

    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 action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     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).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

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, however, exempts from section 801 the 
following types of rules: Rules of particular applicability; rules 
relating to agency management or personnel; and 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). 
Because this is a rule of particular applicability, EPA is not required 
to submit a rule report regarding this action under section 801.

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 October 14, 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. Parties with objections to this direct final rule are 
encouraged to file a comment in response to the parallel notice of 
proposed rulemaking for this action published in the proposed rules 
section of today's Federal Register, rather than file an immediate 
petition for judicial review of this direct final rule, so that EPA can 
withdraw this direct final rule and address the comment in the proposed 
rulemaking action.
    This action to remove the two operating permits and a consent 
agreement for Potomac River from the Virginia SIP may not be challenged 
later in proceedings to enforce its requirements. See section 
307(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Ozone, Volatile organic compounds.

[[Page 47007]]

    Dated: July 29, 2014.
William C. Early,
Acting Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart VV--Virginia

Sec.  52.2420  [Amended]

0
2. In Sec.  52.2420, the table in paragraph (d) is amended by removing 
the three entries entitled ``Potomac Electric Power Company (PEPCO)-
Potomac River Generating Station [Permit to Operate]'', ``Potomac 
Electric Power Company (PEPCO)--Potomac River Generating Station 
[Consent Agreement]'', and ``Potomac Electric Power Company (PEPCO)--
Potomac River Generating Station''.

[FR Doc. 2014-18930 Filed 8-11-14; 8:45 am]
BILLING CODE 6560-50-P
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