62666 Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Proposed Rules

specified by Executive Order 13084 (63

FR 27655, May 10, 1998). This proposed

rule will 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), because it

merely proposes to approve 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 proposed rule also is not

subject to Executive Order 13045 (62 FR

19885, April 23, 1997), because it is not

economically significant.

In reviewing SIP 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 SIP submission for

failure to use VCS. It would thus be

inconsistent with applicable law for

EPA, when it reviews a SIP submission,

to use VCS in place of a SIP 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. As required by

section 3 of Executive Order 12988 (61

FR 4729, February 7, 1996), in issuing

this proposed rule, EPA has taken the

necessary steps to eliminate drafting

errors and ambiguity, minimize

potential litigation, and provide a clear

legal standard for affected conduct. EPA

has complied with Executive Order

12630 (53 FR 8859, March 15, 1988) by

examining the takings implications of

the rule in accordance with the

‘‘Attorney General’s Supplemental

Guidelines for the Evaluation of Risk

and Avoidance of Unanticipated

Takings’’ issued under the executive

order. This proposed rule regarding

Maryland’s and Virginia’s Post-1996

plan for the Washington area does not

impose an information collection

burden under the provisions of the

Paperwork Reduction Act of 1995 (44

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

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Hydrocarbons,

Intergovernmental relations, Nitrogen

dioxide, Ozone, Reporting and

recordkeeping requirements.

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

Dated: October 13, 2000.

Thomas Voltaggio,

Acting Regional Administrator, Region III.

[FR Doc. 00–26907 Filed 10–18–00; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[VA122 & 123–5054; FRL–6888–4]

Approval and Promulgation of Air

Quality Implementation Plans; Virginia;

Source-Specific Permits To Reduce

NOX Emissions in the Metropolitan

Washington, D.C. Ozone

Nonattainment Area

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing to approve

two permits issued by the

Commonwealth of Virginia for the

Potomac Electric Power Company

(PEPCO), Potomac River Generating

Station and the Virginia Power (VP),

Possum Point Generating Station. These

permits were submitted as State

Implementation Plan (SIP) revisions on

September 19, 2000 and September 26,

2000, respectively, by the Virginia

Department of Environmental Quality

(VADEQ). These permits impose

conditions which reduce nitrogen

oxides (NOX) emissions from these two

facilities during the ozone season (May

1–September 30) of each year. The

intent of this action is to propose

approval of these permits as SIP

revisions because the resulting NOX

emission reductions are strengthening

measures for the Metropolitan

Washington, D.C. ozone nonattainment

area’s attainment plan and are necessary

for full approval of the attainment

demonstration SIP for the Metropolitan

Washington, D.C. ozone nonattainment

area.

DATES: Written comments must be

received on or before November 9, 2000.

ADDRESSES: Comments may be mailed to

Makeba A. Morris, Chief, Technical

Assessment Branch, Mailcode 3AP11,

Environmental Protection Agency,

Region III, 1650 Arch Street,

Philadelphia, Pennsylvania 19103.

Copies of the documents relevant to this

action are available for public

inspection during normal business

hours at the following locations: Air

Protection Division, Environmental

Protection Agency, Region III, 1650

Arch Street, Philadelphia, Pennsylvania

19103–2029; Virginia Department of

Environmental Quality, 629 East Main

Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT:

Michael Ioff at (215) 814–2166.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What is EPA proposing to approve?

II. What pollutant will these SIP revisions

control?

III. What are the limits for these sources?

IV. What are the environmental effects of this

action?

V. General information pertaining to

Submittals for the Commonwealth

VII. Proposed Action.

VIII. Administrative Requirements.

I . What Is EPA Proposing To Approve?

EPA is proposing to approve two

permits issued by the Commonwealth of

Virginia for the Potomac Electric Power

Company’s (PEPCO) Potomac River

Generating Station in Alexandria and

for the Virginia Power (VP), Possum

Point Generating Station in Dumfries,

submitted as SIP revisions on

September 19, 2000 and September 26,

2000, respectively. These permits

impose conditions which reduce

nitrogen oxides ( NOX) emissions during

the ozone season of each year (May 1–

September 30). This action will have a

beneficial effect on air quality by

reducing NOX emissions in

Metropolitan Washington, D.C. ozone

nonattainment area. It is being taken

under Section 110 of the Clean Air Act

(CAA).

II. What Pollutant Will These SIP

Revisions Control?

The proposed permits require the

Potomac River Station and the Possum

Point Station to reduce their NOX

emissions during the ozone season.

Nitrogen oxides, or NOX, is the generic

term for a group of gases formed in a

combustion process. The primary

sources of NOX emissions are motor

vehicles, electric utilities and, to a lesser

degree, industrial, commercial and

residential sources that burn fossil fuel.

NOX is one of the main ingredients

responsible for formation of groundlevel ozone (smog).

III. What Are the Limits for These

Sources?

The permit for the Potomac River

Generating Station establishes a limit

(cap) on emission of nitrogen oxides to

no more than 1019 tons during each

ozone season (May 1 through September

30). This emission cap is based on an

average emission rate of 0.15 pound per

million BTU of heat input for each

individual unit during the ozone season.

Compliance shall be demonstrated by

continuous emission monitoring from

Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Proposed Rules 62667

each unit, beginning no later than year

2003. The permit for the Possum Point

Generating Station limits emission of

nitrogen oxides from the combined

emission units to no more than 0.15

pound per million BTU of heat input

averaged over every period of 30

consecutive operating days during the

ozone season. Compliance shall be

demonstrated by calculations based

upon a specific formula with the input

to be derived from the collection of

continuous emission monitoring data,

beginning the 30th operating day in

January of year 2003.

IV. What Are the Environmental Effects

of This Action?

Both electric utilities are currently

operating their emission units in

compliance with VADEQ issued permits

imposing Reasonably Available Control

Technology (RACT) and ‘‘Acid Rain’’

permits issued pursuant to Title IV of

the CAA. The NOX reduction

requirements in the permits described

in section III, above, are more stringent

than those imposed in the RACT and

Acid Rain permits. Therefore, the

permits submitted by VADEQ on

September 19, 2000 and September 26,

2000, will result in additional

reductions of NOX emissions during the

ozone season.

V. General Information Pertaining to

Submittals From the Commonwealth

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, 1997, 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 section 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, 1997

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 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.

EPA’s review of this material

indicates that proposed permits will

have a beneficial effect on air quality by

reducing NOX emissions in

Metropolitan Washington, D.C. ozone

nonattainment area. EPA is proposing to

approve the permits for Potomac River

Generating Station and Possum Point

Generating Station, as SIP revisions.

VIII. Proposed Action

EPA is proposing to approve two

permits issued by the Commonwealth of

Virginia to control NOX emissions from

the Potomac Electric Power Company’s

(PEPCO) Potomac River Generating

Station and the Virginia Power’s (VP)

Possum Point Generating Station as

revisions to Virginia’s SIP. EPA is

proposing approval of these permits as

SIP revisions because the resulting NOX

emission reductions are strengthening

measures for the Metropolitan

Washington, D.C. ozone nonattainment

area’s attainment plan SIP and are

necessary for full approval of that

attainment demonstration. Written

comments must be received on or before

November 9, 2000. EPA calls your

attention to the November 9, 2000

deadline date for submittal of comments

on this proposed action to approve these

SIP revisions submitted by the

Commonwealth of Virginia. The EPA is

providing a shortened time period for

comment for two reasons. As an initial

matter, these revisions are noncontroversial and EPA does not expect

comment because these are sourcespecific SIP revisions consisting of

permits affecting only the two named

facilities. Moreover, these SIP revisions

are necessary for full approval of the

attainment demonstration SIP for the

Metropolitan Washington, D.C. ozone

nonattainment area. The EPA is

currently under an obligation to

complete rulemaking by November 15,

2000 fully approving the attainment

demonstration for the Metropolitan

Washington, D.C. ozone nonattainment

area or, in the alternative, proposing a

federal implementation plan.

VIII. Administrative Requirements

Under Executive Order 12866 (58 FR

51735, October 4, 1993), this proposed

action is not a ‘‘significant regulatory

action’’ and therefore is not subject to

review by the Office of Management and

Budget. This proposed action merely

proposes to approve state law as

meeting Federal requirements and

imposes no additional requirements

beyond those imposed by state law.

Accordingly, the Administrator certifies

62668 Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Proposed Rules

that this proposed rule will not have a

significant economic impact on a

substantial number of small entities

under the Regulatory Flexibility Act (5

U.S.C. 601 et seq.). Because this rule

proposes to approve pre-existing

requirements under state law and does

not impose any additional enforceable

duty beyond that required by state law,

it does not contain any unfunded

mandate or significantly or uniquely

affect small governments, as described

in the Unfunded Mandates Reform Act

of 1995 (Public Law 104–4). For the

same reason, this proposed rule also

does not significantly or uniquely affect

the communities of tribal governments,

as specified by Executive Order 13084

(63 FR 27655, May 10, 1998). This

proposed rule will 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), because it merely

proposes to approve 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 proposed rule also is not

subject to Executive Order 13045 (62 FR

19885, April 23, 1997), because it is not

economically significant. In reviewing

SIP 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 SIP submission for failure

to use VCS. It would thus be

inconsistent with applicable law for

EPA, when it reviews a SIP submission,

to use VCS in place of a SIP 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. As required by

section 3 of Executive Order 12988 (61

FR 4729, February 7, 1996), in issuing

this proposed rule, EPA has taken the

necessary steps to eliminate drafting

errors and ambiguity, minimize

potential litigation, and provide a clear

legal standard for affected conduct. EPA

has complied with Executive Order

12630 (53 FR 8859, March 15, 1988) by

examining the takings implications of

the rule in accordance with the

‘‘Attorney General’s Supplemental

Guidelines for the Evaluation of Risk

and Avoidance of Unanticipated

Takings’’ issued under the executive

order. This proposed rule to approve

permits issued by the Commonwealth of

Virginia to control NOX emissions from

the Potomac River Generating Station

and the Possum Point Generating

Station does not impose an information

collection burden under the provisions

of the Paperwork Reduction Act of 1995

(44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Intergovernmental

relations, Nitrogen dioxide, Ozone,

Reporting and recordkeeping

requirements.

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

Dated: October 13, 2000.

Thomas Voltaggio,

Acting Regional Administrator, Region III.

[FR Doc. 00–26906 Filed 10–18–00; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[MD106–3058; FRL–6888–3]

Approval and Promulgation of Air

Quality Implementation Plans;

Maryland; Reasonably Available

Control Technology for Oxides of

Nitrogen

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing to approve

a State Implementation Plan (SIP)

revision submitted by the State of

Maryland. This revision requires major

sources of nitrogen oxides (NOX) in the

State of Maryland to implement

reasonably available control technology

(RACT). This action is being taken in

accordance with the Clean Air Act.

DATES: Written comments must be

received on or before November 9, 2000.

ADDRESSES: Written comments should

be mailed to David L. Arnold, Chief,

Ozone and Mobile Sources Branch,

Mailcode 3AP21, U.S. Environmental

Protection Agency, Region III, 1650

Arch Street, Philadelphia, Pennsylvania

19103. Copies of the documents relevant

to this action are available 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 and

the Maryland Department of the

Environment, 2500 Broening Highway,

Baltimore, Maryland 21224.

FOR FURTHER INFORMATION CONTACT:

Kelly L. Bunker, (215) 814–2177 or by

e-mail at bunker.kelly@epamail.epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

Pursuant to sections 182(b)(2) and

182(f) of the Clean Air Act (CAA),

Maryland is required to implement

RACT for all major NOX sources by no

later than May 31, 1995. The definition

of a major source is determined by its

size, location, the classification of that

area and whether it is located in the

ozone transport region (OTR), which is

established by the CAA. The entire State

of Maryland is included in the OTR.

The Baltimore nonattainment area and

Cecil County are classified as severe

nonattainment areas. Calvert, Charles,

Frederick, Montgomery and Prince

George’s Counties are classified as

serious ozone nonattainment areas. The

remaining counties in Maryland are

classified as marginal or in attainment.

However, under section 184 of the CAA,

at a minimum, moderate area

requirements for stationary sources,

including RACT as specified in sections

182(b)(2) and 182(f), apply throughout

the OTR. Therefore, RACT is applicable

statewide in Maryland. Section 182 of

the Act defines a major NOX source as

one that emits or has the potential to

emit 25 or more tons of NOX per year

(TPY) in any ozone nonattainment area

classified as severe, or 50 or more TPY

located in any ozone nonattainment area

classified as serious. For any area in the

OTR classified as attainment or

marginal nonattainment, sections 182

and 184 of the Act define a major

stationary source of NOX as one that

emits or has the potential to emit 100 or

more TPY.

On July 11, 1995, the Maryland

Department of the Environment (MDE)

submitted a revision to its State

Implementation Plan (SIP) for the

control of NOX emissions from major

sources. This submittal included

revisions to regulation COMAR

26.11.09.01 and 26.11.09.08 which

pertained to definitions and a ‘‘generic’’

NOX RACT rule. This generic rule

required affected sources to either meet

a presumptive NOX emissions standard

or to submit a ‘‘case-by-case’’ RACT

proposal for approval by MDE. Each

case-by-case RACT determination was

required to be the subject of a public

hearing and to be submitted to the EPA

as a SIP revision. On June 22, 1999 EPA

granted conditional limited approval of

this SIP revision (64 FR 33197). On

September 8, 2000, Maryland submitted