Approval and Promulgation of Air Quality Implementation Plans; Virginia; State Implementation Plan Revision for Burlington Industries, Clarksville, VA, 39030-39032 [06-6149]
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39030
Federal Register / Vol. 71, No. 132 / Tuesday, July 11, 2006 / Proposed Rules
responsibilities between the Federal
Government and Indian tribes.
Energy Effects
We have analyzed this proposed rule
under Executive Order 13211, Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use. We have
determined that it is not a ‘‘significant
energy action’’ under that order because
it is not a ‘‘significant regulatory action’’
under Executive Order 12866 and is not
likely to have a significant adverse effect
on the supply, distribution, or use of
energy. The Administrator of the Office
of Information and Regulatory Affairs
has not designated it as a significant
energy action. Therefore, it does not
require a Statement of Energy Effects
under Executive Order 13211.
jlentini on PROD1PC65 with PROPOSAL
Technical Standards
The National Technology Transfer
and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use
voluntary consensus standards in their
regulatory activities unless the agency
provides Congress, through the Office of
Management and Budget, with an
explanation of why using these
standards would be inconsistent with
applicable law or otherwise impractical.
Voluntary consensus standards are
technical standards (e.g., specifications
of materials, performance, design, or
operation; test methods; sampling
procedures; and related management
systems practices) that are developed or
adopted by voluntary consensus
standards bodies.
This proposed rule does not use
technical standards. Therefore, we did
not consider the use of voluntary
consensus standards.
Environment
We have analyzed this proposed rule
under Commandant Instruction
M16475.1D, and Department of
Homeland Security Management
Directive 5100.1, which guide the Coast
Guard in complying with the National
Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321–4370f), and
have made a preliminary determination
that there are no factors in this case that
would limit the use of a categorical
exclusion under section 2.B.2 of the
Instruction. Therefore, we believe that
this rule should be categorically
excluded, under figure 2–1, paragraph
(32)(e) of the Instruction, from further
environmental documentation as this
action relates to the promulgation of
operating regulations or procedures for
drawbridges. Under figure 2–1,
paragraph (32)(e) of the Instruction, an
‘‘Environmental Analysis Checklist’’ is
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not required for this rule. Comments on
this section will be considered before
we make the final decision on whether
to categorically exclude this rule from
further environmental review.
List of Subjects in 33 CFR Part 117
Bridges.
Regulations
For the reasons discussed in the
preamble, the Coast Guard proposes to
amend 33 CFR part 117 as follows:
PART 117—DRAWBRIDGE
OPERATION REGULATIONS
1. The authority citation for part 117
continues to read as follows:
Authority: 33 U.S.C. 499; Department of
Homeland Security Delegation No. 0170.1; 33
CFR 1.05–1(g); section 117.255 also issued
under the authority of Pub. L. 102–587, 106
Stat. 5039.
2. From, November 1, 2006 through
April 30, 2007, § 117.618(b) is
suspended and a new paragraph (d) is
added to read as follows:
§ 117.618
Saugus River.
*
*
*
*
*
(d) The draw of the General Edwards
SR1A Bridge at mile 1.7, need not open
for the passage of vessel traffic from
November 1, 2006 through April 30,
2007.
Dated: June 16, 2006.
Mark J. Campbell,
Captain, U.S. Coast Guard, Acting
Commander, First Coast Guard District.
[FR Doc. E6–10760 Filed 7–10–06; 8:45 am]
BILLING CODE 4910–15–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2006–0059; FRL–8192–8]
Approval and Promulgation of Air
Quality Implementation Plans; Virginia;
State Implementation Plan Revision for
Burlington Industries, Clarksville, VA
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
SUMMARY: EPA is proposing to approve
a State Implementation Plan (SIP)
revision submitted by the
Commonwealth of Virginia. This
revision pertains to the removal of a
Consent Agreement from the Virginia
SIP. The Consent Agreement was
written for the control of emissions of
sulfur dioxide from the Burlington
Industries facility located in Clarksville,
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Fmt 4702
Sfmt 4702
Mecklenburg County, Virginia. This
Agreement has been superseded by a
federally enforceable state operating
permit dated May 17, 2004, which
imposes operating restrictions on the
facility’s boilers and the subsequent
shutdown of the remainder of the
facility. This action is being taken under
the Clean Air Act (CAA or the Act).
DATES: Written comments must be
received on or before August 10, 2006.
ADDRESSES: Submit your comments,
identified by Docket ID Number EPA–
R03–OAR–2006–0059 by one of the
following methods:
A. https://www.regulations.gov. Follow
the on-line instructions for submitting
comments.
B. E-mail: campbell.david@epa.gov
C. Mail: EPA–R03–OAR–2006–0059,
David J. Campbell, Chief, Permits and
Technical Assistance Branch, Mailcode
3AP11, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103.
D. 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
Docket ID No. EPA–R03–OAR–2006–
0059. 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 e-mail. 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 e-mail
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
E:\FR\FM\11JYP1.SGM
11JYP1
Federal Register / Vol. 71, No. 132 / Tuesday, July 11, 2006 / Proposed Rules
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.
FOR FURTHER INFORMATION CONTACT:
Sharon McCauley, (215) 814–3376, or by
e-mail at mccauley.sharon@epa.gov.
SUPPLEMENTARY INFORMATION: On July
12, 2004, the Virginia Department of
Environmental Quality submitted a
revision request to its SIP entitled ‘‘SIP
Revision for Burlington Industries’’. The
request was for the removal of a Consent
Agreement incorporated into the
Virginia SIP. This agreement was
written to regulate the control of
emissions of sulfur dioxide from the
Burlington Industries facility located in
Clarksville, Virginia.
jlentini on PROD1PC65 with PROPOSAL
I. Background
The need to restrict the operation and
reduce the allowable sulfur dioxide
emissions of the Burlington Industries
facility was discovered through an Air
Quality Impact Analysis supporting a
Prevention of Significant Deterioration
permit application submitted by the
Mecklenburg Cogeneration Limited
Partnership. The analysis indicated that
Burlington Industries had the potential
to exceed the primary and secondary
National Ambient Air Quality Standards
(NAAQS) for sulfur dioxide when
operating at its maximum allowable
levels. As a result, Burlington Industries
voluntarily agreed to a control program
with the Virginia State Air Pollution
Control Board.
In 1991, Burlington Industries
submitted a plan (including proposed
operating restrictions and a dispersion
modeling demonstration) for mitigating
any potential NAAQS violations.
Because no regulations for issuing
operating permits existed at that time in
Virginia, the plan was incorporated into
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16:39 Jul 10, 2006
Jkt 208001
a legally enforceable Consent Agreement
on November 19, 1991 between the
Commonwealth and Burlington
Industries. In order to then make the
provisions federally enforceable,
Virginia submitted the Consent
Agreement to EPA as part of a SIP
revision, and EPA subsequently
approved this SIP revision on March 18,
1992 (57 FR 9388).
II. Summary of SIP Revision
EPA is proposing to approve this SIP
revision submitted by the
Commonwealth of Virginia. Burlington
Industries’ federal operating (Title V)
permit which included conditions from
the Consent Agreement was issued on
December 14, 2001. In 2002, Burlington
Industries closed its facility and all of
the manufacturing equipment was
removed; however, the boilers remained
operable. Burlington Industries
requested that the Commonwealth
impose additional operating restrictions
at the facility. As a result of these
additional restrictions, the facility is no
longer considered a major source with
respect to the Title V program. In order
to make these new restrictions state and
Federally enforceable, it is necessary to
include Burlington Industries in a new
Federally enforceable state operating
permit, which would then become the
legally enforceable mechanism for
implementing the restrictions.
The new Federally enforceable state
operating permit issued on May 17,
2004 vacated the original Consent
Agreement from Nov. 19, 1991 and
automatically rendered it ineffective at
the state level. In order to vacate the
Agreement at the federal level, the
Virginia SIP must be revised to remove
the Consent Agreement previously
approved at 40 CFR 52.2420(c)(96), and
currently cited at 40 CFR 52.2420(d) and
52.2465(c)(96). EPA is proposing to
remove the Consent Agreement from the
Virginia SIP.
III. 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
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39031
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.’’
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Federal Register / Vol. 71, No. 132 / Tuesday, July 11, 2006 / Proposed Rules
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.
jlentini on PROD1PC65 with PROPOSAL
IV. Proposed Action
EPA is proposing to approve the
removal of the vacated Consent
Agreement for Burlington Industries
from the Virginia SIP. EPA is soliciting
public comments on the issues
discussed in this document. These
comments will be considered before
taking final action.
V. Statutory and Executive Order
Reviews
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. 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 proposes
to approve state law as meeting Federal
requirements and imposes no additional
requirements beyond those imposed by
state law. Accordingly, the
Administrator certifies 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
(Pub. L. 104–4). This proposed rule also
does not have a substantial direct effect
on one or more Indian tribes, on the
relationship between the Federal
Government and Indian tribes, or on the
distribution of power and
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17:15 Jul 10, 2006
Jkt 208001
responsibilities between the Federal
Government and Indian tribes, as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will
it have substantial direct effects on the
States, on the relationship between the
national government and the States, or
on the distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132 (64 FR 43255,
August 10, 1999), because it merely
proposes to approve a state rule
implementing a Federal requirement,
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 the
Virginia Department of Environmental
Quality State Implementation Plan
revision request for the removal of the
Consent Agreement for the Burlington
Industries facility located in Clarksville,
Mecklenburg County, VA, 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, Reporting and
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Fmt 4702
Sfmt 4702
recordkeeping requirements, Sulfur
oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 27, 2006.
William T. Wisniewski,
Acting Regional Administrator, Region III.
[FR Doc. 06–6149 Filed 7–10–06; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 300
[FRL–8195–4]
National Oil and Hazardous
Substances Pollution Contingency
Plan; National Priorities List
AGENCY:
Environmental Protection
Agency.
Notice of Intent to Delete the T.
H. Agriculture and Nutrition Site from
the National Priorities List.
ACTION:
SUMMARY: The Environmental Protection
Agency (EPA) Region 9 announces the
intent to delete the T. H. Agriculture
and Nutrition site (‘‘the site’’) from the
National Priorities List (NPL) and
requests public comment on this
proposed action. The NPL constitutes
Appendix B of 40 CFR part 300 which
is the National Oil and Hazardous
Substances Pollution Contingency Plan
(NCP), which EPA promulgated
pursuant to section 105 of the
Comprehensive Environmental
Response, Compensation and Liability
Act (CERCLA) of 1980, as amended.
EPA and the State of California, through
the California Department of Toxic
Substances Control, have determined
that the remedial action for the site has
been successfully executed.
Comments concerning the
proposed deletion of this Site from the
NPL may be submitted on or before
August 10, 2006.
DATES:
Submit your comments,
identified by Docket ID No. EPA–HQ–
SFUND–1986–0005, by one of the
following methods:
• https://www.regulations.gov. Follow
the on-line instruction for submitting
comments.
• E-mail the superfund docket center
(specify docket ID number)—e-mail
address: superfund.docket@epa.gov.
• Fax the docket center (specify
docket number)—fax number: 202–566–
0224
• Mail hardcopy to the docket center
(specify docket number) address:
ADDRESSES:
E:\FR\FM\11JYP1.SGM
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Agencies
[Federal Register Volume 71, Number 132 (Tuesday, July 11, 2006)]
[Proposed Rules]
[Pages 39030-39032]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-6149]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2006-0059; FRL-8192-8]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; State Implementation Plan Revision for Burlington Industries,
Clarksville, VA
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP)
revision submitted by the Commonwealth of Virginia. This revision
pertains to the removal of a Consent Agreement from the Virginia SIP.
The Consent Agreement was written for the control of emissions of
sulfur dioxide from the Burlington Industries facility located in
Clarksville, Mecklenburg County, Virginia. This Agreement has been
superseded by a federally enforceable state operating permit dated May
17, 2004, which imposes operating restrictions on the facility's
boilers and the subsequent shutdown of the remainder of the facility.
This action is being taken under the Clean Air Act (CAA or the Act).
DATES: Written comments must be received on or before August 10, 2006.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2006-0059 by one of the following methods:
A. https://www.regulations.gov. Follow the on-line instructions for
submitting comments.
B. E-mail: campbell.david@epa.gov
C. Mail: EPA-R03-OAR-2006-0059, David J. Campbell, Chief, Permits
and Technical Assistance Branch, Mailcode 3AP11, 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-
2006-0059. 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 e-mail.
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 e-
mail comment directly to EPA without going through www.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
[[Page 39031]]
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.
FOR FURTHER INFORMATION CONTACT: Sharon McCauley, (215) 814-3376, or by
e-mail at mccauley.sharon@epa.gov.
SUPPLEMENTARY INFORMATION: On July 12, 2004, the Virginia Department of
Environmental Quality submitted a revision request to its SIP entitled
``SIP Revision for Burlington Industries''. The request was for the
removal of a Consent Agreement incorporated into the Virginia SIP. This
agreement was written to regulate the control of emissions of sulfur
dioxide from the Burlington Industries facility located in Clarksville,
Virginia.
I. Background
The need to restrict the operation and reduce the allowable sulfur
dioxide emissions of the Burlington Industries facility was discovered
through an Air Quality Impact Analysis supporting a Prevention of
Significant Deterioration permit application submitted by the
Mecklenburg Cogeneration Limited Partnership. The analysis indicated
that Burlington Industries had the potential to exceed the primary and
secondary National Ambient Air Quality Standards (NAAQS) for sulfur
dioxide when operating at its maximum allowable levels. As a result,
Burlington Industries voluntarily agreed to a control program with the
Virginia State Air Pollution Control Board.
In 1991, Burlington Industries submitted a plan (including proposed
operating restrictions and a dispersion modeling demonstration) for
mitigating any potential NAAQS violations. Because no regulations for
issuing operating permits existed at that time in Virginia, the plan
was incorporated into a legally enforceable Consent Agreement on
November 19, 1991 between the Commonwealth and Burlington Industries.
In order to then make the provisions federally enforceable, Virginia
submitted the Consent Agreement to EPA as part of a SIP revision, and
EPA subsequently approved this SIP revision on March 18, 1992 (57 FR
9388).
II. Summary of SIP Revision
EPA is proposing to approve this SIP revision submitted by the
Commonwealth of Virginia. Burlington Industries' federal operating
(Title V) permit which included conditions from the Consent Agreement
was issued on December 14, 2001. In 2002, Burlington Industries closed
its facility and all of the manufacturing equipment was removed;
however, the boilers remained operable. Burlington Industries requested
that the Commonwealth impose additional operating restrictions at the
facility. As a result of these additional restrictions, the facility is
no longer considered a major source with respect to the Title V
program. In order to make these new restrictions state and Federally
enforceable, it is necessary to include Burlington Industries in a new
Federally enforceable state operating permit, which would then become
the legally enforceable mechanism for implementing the restrictions.
The new Federally enforceable state operating permit issued on May
17, 2004 vacated the original Consent Agreement from Nov. 19, 1991 and
automatically rendered it ineffective at the state level. In order to
vacate the Agreement at the federal level, the Virginia SIP must be
revised to remove the Consent Agreement previously approved at 40 CFR
52.2420(c)(96), and currently cited at 40 CFR 52.2420(d) and
52.2465(c)(96). EPA is proposing to remove the Consent Agreement from
the Virginia SIP.
III. 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 (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 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.''
[[Page 39032]]
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.
IV. Proposed Action
EPA is proposing to approve the removal of the vacated Consent
Agreement for Burlington Industries from the Virginia SIP. EPA is
soliciting public comments on the issues discussed in this document.
These comments will be considered before taking final action.
V. Statutory and Executive Order Reviews
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. 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 proposes to approve state law as meeting Federal
requirements and imposes no additional requirements beyond those
imposed by state law. Accordingly, the Administrator certifies 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 (Pub. L. 104-4). This proposed rule also does not have a
substantial direct effect on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will it have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132 (64 FR 43255, August 10, 1999), because it
merely proposes to approve a state rule implementing a Federal
requirement, 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 the Virginia Department of Environmental
Quality State Implementation Plan revision request for the removal of
the Consent Agreement for the Burlington Industries facility located in
Clarksville, Mecklenburg County, VA, 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, Reporting and
recordkeeping requirements, Sulfur oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 27, 2006.
William T. Wisniewski,
Acting Regional Administrator, Region III.
[FR Doc. 06-6149 Filed 7-10-06; 8:45 am]
BILLING CODE 6560-50-P