Approval and Promulgation of Air Quality Implementation Plans; Virginia; Source-Specific Reasonably Available Control Technology Determinations for 2008 Ozone National Ambient Air Quality Standard

Federal Register, Volume 84 Issue 148 (Thursday, August 1, 2019)
[Federal Register Volume 84, Number 148 (Thursday, August 1, 2019)]
[Proposed Rules]
[Pages 37607-37610]
From the Federal Register Online via the Government Publishing Office []
[FR Doc No: 2019-16439]
40 CFR Part 52
[EPA-R03-OAR-2019-0277; FRL-9997-70-Region 3 ]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Source-Specific Reasonably Available Control Technology
Determinations for 2008 Ozone National Ambient Air Quality Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve three state implementation plan (SIP) revisions submitted by
the Commonwealth of Virginia. These revisions address reasonably
available control technology (RACT) requirements under the 2008 ozone
national ambient air quality standard (NAAQS) for three facilities in
Northern Virginia through source-specific determinations. This action
is being taken under the Clean Air Act (CAA).
DATES: Written comments must be received on or before September 3,
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2019-0277 at, or via email to
[email protected]. For comments submitted at,
follow the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from 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
FOR FURTHER INFORMATION CONTACT: Emlyn V[eacute]lez-Rosa, Planning &
Implementation Branch (3AD30), Air & Radiation Division, U.S.
Environmental Protection Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103. The telephone number is (215) 814-
2038. Ms. V[eacute]lez-Rosa can also be reached via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION: On February 1, 14, and 15, 2019, the
Virginia Department of Environmental Quality (VADEQ) submitted three
separate revisions to its SIP addressing RACT under the 2008 ozone
NAAQS for three facilities in Northern Virginia. The SIP revisions
consist of source-specific RACT determinations for each facility.
I. Background
    RACT is an important strategy for reducing oxides of nitrogen
(NOX) and volatile organic compounds (VOC) emissions from
major stationary sources within areas not meeting the ozone NAAQS.
Since the 1970's, EPA has consistently defined ``RACT'' as the lowest
emission limit that a particular source is capable of meeting by the
application of the control technology that is reasonably available
considering technological and economic feasibility.\1\
    \1\ See December 9, 1976 memorandum from Roger Strelow,
Assistant Administrator for Air and Waste Management, to Regional
Administrators, ``Guidance for Determining Acceptability of SIP
Regulations in Non-Attainment Areas,'' and also 44 FR 53762;
September 17, 1979.
    Section 172(c)(1) of the CAA provides that SIPs for nonattainment
areas must include reasonably available control measures (RACM) for
demonstrating attainment of all NAAQS, including emissions reductions
from existing sources through adoption of RACT. In addition, Section
182 of the CAA sets forth additional RACT requirements for the ozone
NAAQS for moderate, serious or severe nonattainment areas. Section 182
requires states to implement RACT for VOC sources in the area covered
by a control technique guideline (CTG) document issued by EPA, all
other major stationary sources of VOCs that are located in the area,
and major stationary sources of NOX. The section 182 RACT
requirements are usually referred to as CTG RACT, major non-CTG VOC
RACT, and major NOX RACT.
    Further, section 184(b)(1)(B) of the CAA requires states to
implement RACT in any areas located within ozone transport regions
established pursuant to section 184. This requirement is referred to as
OTR RACT. A single ozone transport region (the OTR) has been
established under section 184(a), which comprises of 12 States,
including the District of Columbia, the Northern portion of Virginia,
and portions of Maryland as part of the Consolidated Metropolitan
Statistical Area (CMSA). The Northern portion of Virginia (hereafter
Northern Virginia) consists of the Arlington County, Fairfax County,
Loudoun County, Prince William County, Alexandria City, Fairfax City,
Falls Church City, Manassas City, Manassas Park City, and Strafford
County. The three facilities which are the subject of this Notice of
Proposed Rulemaking are located in Northern Virginia, and thus subject
    On March 12, 2008, EPA revised the 8-hour ozone standards, by
lowering the standard to 0.075 parts per million (ppm) averaged over an
8-hour period (2008 ozone NAAQS). See 73 FR 16436. On May 21, 2012, EPA
designated the Washington, DC-MD-VA area as a marginal ozone
nonattainment area for the 2008 ozone NAAQS. The Washington, DC-MD-VA
marginal ozone nonattainment area includes all cities and counties in
the Northern portion of Virginia that are part of the OTR, with
exception of the Strafford County. See 77 FR 30088 and 40 CFR 81.347.
    On March 6, 2015, EPA issued its final rule for implementing the
2008 ozone NAAQS (``the 2008 Ozone SIP Requirements Rule'').\2\ In
addressing RACT requirements, the 2008 Ozone SIP Requirements Rule is
consistent with existing policy and EPA's previous ozone implementation
rule. For 2008 ozone NAAQS, only Northern Virginia is subject to RACT
due to its location in the OTR, as no moderate nonattainment areas were
designated by EPA under the standard.
    \2\ 80 FR 12264 (March 6, 2015).
II. Summary of SIP Revision and EPA Analysis
    Virginia's February 1, 14, and 15, 2019 SIP revisions address
NOX and/or VOC RACT for the following facilities: Virginia
Electric and Power Company--Possum Point Power Station, Covanta
Alexandria/Arlington, Inc., and Covanta Fairfax, Inc. VADEQ is adopting
as part of these SIP revisions additional NOX control
requirements for these three facilities to meet RACT under the 2008
ozone NAAQS, all of which are implemented via Federally enforceable
permits issued by VADEQ. These RACT permits, as listed on Table 1, have
[[Page 37608]]
submitted as part of each SIP revision for EPA's approval into the
Virginia SIP under 40 CFR 52.2420(d).
    Virginia's source specific RACT determinations include an
evaluation of NOX and/or VOC controls that are reasonably
available for the affected emissions units at each facility and its
determination of which control requirements satisfy RACT. VADEQ's RACT
determinations are based on the following top-down control technology
approach: (1) Identify all available control alternatives; (2) assess
technical feasibility; and (3) evaluate remaining technologies in order
of control effectiveness considering: Expected emissions reduction
measured in tons per year (tons/yr), economic impacts measured in
dollar per ton of pollutant removed ($/ton), environmental impacts, and
energy impacts. If the top control alternative is not selected as RACT,
the rationale for rejection must be documented. The next most stringent
control alternative is then assessed, and the process continues until
RACT is determined.
    VADEQ submitted Federally enforceable permits with the purpose of
implementing the requirements of 9VAC5, Chapter 40 (9VAC5-40), sections
7400, 7420, and 7430. Sections 7400 and 7420 required any major
NOX and any major VOC sources, respectively, not subject to
other RACT regulations under Chapter 40 to make a source-specific (or
case-by-case) determination of what constitutes RACT under the 2008
ozone NAAQS and submit it to VADEQ for approval. Source-specific
determinations are not required in the case of major NOX
sources subject to the presumptive NOX RACT standards of
9VAC5-40, section 7430. Section 7430 also exempts certain smaller
NOX sources from having to make a RACT demonstration.
                      Table 1--Facilities With Proposed Source-Specific RACT Determinations
                                                                                 RACT permit       SIP submittal
          Facility name                Source type          Facility ID        (effective date)        date
Virginia Electric and Power        Electric generation  Registration No.     Permit to Operate            2/1/19
 Company--Possum Point Power        utility.             70225.               (1/31/19).
Covanta Fairfax, Inc.............  Municipal waste      Registration No.     Permit to Operate           2/14/19
                                    combustor.           71920.               (2/8/19).
Covanta Alexandria/Arlington, Inc  Municipal waste      Registration No.     Permit to Operate           2/15/19
                                    combustor.           71895.               (2/8/19).
    As part of the February 1, 2019 SIP revision, VADEQ is addressing
RACT for the Possum Point Power Station, an electrical generation
utility (EGU) facility located in Prince William County owned and
operated by Virginia Electric and Power Company. This EGU facility is
considered a major source of NOX and VOC. The Possum Point
Power Station is currently subject to source-specific NOX
and VOC RACT requirements established in two separate enforceable
documents issued under the facility's former name, Virginia Power
(VP)--Possum Point Generating Station: (1) A Consent Agreement between
VADEQ and the facility issued on June 12, 1995 and (2) the facility's
Permit to Operate issued on September 26, 2000. Both documents were
approved as RACT by EPA into the SIP on January 2, 2001. See 66 FR 8.
    As part of the February 1, 2019 SIP revision, VADEQ evaluated all
NOX and VOC emission units in operation at Possum Point
Power Station and determined that additional NOX RACT
requirements were necessary to meet RACT for emissions unit ES-5. ES-5
is an electric generating boiler with a maximum heat input capacity of
8,500 million British thermal units per hour (MMBTU/hr) and a nominal
generating capacity of 840 mega-watts (MW) and burning residual oil as
primary fuel and distillate oil as start-up fuel. ES-5 is subject to a
source-specific NOX RACT limit of 0.25 lb/MMBTU on a 30-day
rolling basis and calculated daily, based on the SIP-approved Permit to
Operate issued on September 26, 2000. The unit is currently equipped
with low NOX burners, overfire air and flue gas
recirculation for reducing NOX emissions. Additional
NOX RACT requirements have been adopted for Boiler ES-5 as
part of the facility's Permit to Operate issued by VADEQ on January 31,
2019 and included for approval into the SIP.
    At the time of VADEQ's RACT evaluation for Possum Point, Virginia
Electric and Power Company indicated that it expected to retire Boiler
ES-5 by June 1, 2021, if it received all required approvals by June
2019. For that reason, VADEQ determined RACT for Boiler ES-5 based on
the two possible operating scenarios: (1) The installation and
operation of selective non-catalytic reduction (SNCR) by June 1, 2019;
or (2) the retirement of the unit by June 1, 2021.\3\
    \3\ As specified in the facility's January 31, 2019 Permit to
Operate (conditions 1 and 6), the requirement to operate the SNCR
can only be voided, if by June 1, 2019: (1) The facility receives
all required approvals to retire ES-5 no later than June 1, 2021,
and (2) the facility enters into a mutual determination of shutdown
for the unit with VADEQ, such that the unit will retire June 1,
2021. VADEQ confirmed that both requirements have been fulfilled and
ES-5 is on schedule to be retired by June 1, 2021.
    The January 31, 2019 Permit to Operate requires as RACT, effective
on June 1, 2019, the operation of existing NOX controls and
SNCR and compliance with a NOX limit of 0.17 pounds per
million British thermal units of heat input (lb/MMBTU) on a daily
basis. The permit also establishes requirements to ensure optimum
operation of SNCR and necessary requirements to demonstrate compliance
demonstration with the NOX RACT limit.
    Prior the commissioning of the SNCR or in the case that Boiler ES-5
retires and while it remains operational, the January 31, 2019 Permit
to Operate establishes as RACT the following requirements for Boiler
ES-5: (1) Continued compliance with the NOX RACT emission
limit of 0.25 lb/MMBTU on a 30-day rolling average basis, calculated
daily, (2) additional restrictions to curtail operations of the unit
during ozone season (April 1-October 31 of each year), and (3)
necessary provisions to demonstrate compliance with the applicable
NOX control requirements. Operation of Unit ES-5 during
ozone season is limited to days in which exceedances of the ozone NAAQS
are not expected,\4\ except in cases of power transmission and
distribution emergencies. These additional provisions are consistent
with the SIP-approved RACT requirements in the 2000 Permit to
[[Page 37609]]
Operate for Boiler ES-5 and ensure the continuous implementation of
NOX RACT for this unit.
    \4\ VADEQ correlates expected ozone exceedances to EPA's
forecast of an Air Quality Index (AQI) greater than 100. The AQI is
an index produced by EPA on a daily basis associated with daily air
quality based on concentrations of different air pollutants,
including ground-level ozone. EPA publishes actual and forecast AQIs
online at
    As part of the February 1, 2019 SIP revision, VADEQ is also
recertifying applicable NOX and VOC controls for the other
two electric generating boilers (ES-3 and ES-4) at Possum Point Power
Station as well as VOC controls for Boiler ES-5, all of which were
previously approved as RACT on a source-specific basis. VADEQ also
determined that that additional VOC controls are not economic or
technically feasible for this facility, given the size and VOC
emissions from individual emissions units. All other emission units are
exempt from a source-specific RACT determination, as allowed under
9VAC5-40, section 7430.
    As part of the February 14, 2019 and February 15, 2019 SIP
revisions, VADEQ is addressing NOX RACT for two municipal
waste combustion (MWC) facilities with energy recovery: Covanta
Fairfax, Inc. (Covanta Fairfax) and Covanta Alexandria/Arlington, Inc.
(Covanta Alexandria/Arlington). These MWC facilities are located in
Lorton, in Fairfax County and City of Alexandria, respectively, and are
considered major sources of NOX. There are four municipal
waste combustors units (MWC units) in Covanta Fairfax and three MWC
units at Covanta Alexandria/Arlington. All MWC units are currently
subject to source-specific NOX RACT requirements approved by
EPA into the SIP on January 2, 2001 for each facility under their
former names: (1) A consent agreement issued on April 3, 1998 for Ogden
Martin Systems of Fairfax, Inc., currently Covanta Fairfax, and (2) a
consent agreement issued on July 31, 1998 for Ogden Martin Systems of
Alexandria/Arlington, Inc., currently Covanta Alexandria-Arlington. See
66 FR 8. Each MWC is subject to a NOX RACT standard of 205
parts per million of volume on a dry basis (ppmvd) at 7% oxygen
(O2). Each facility may also elect to average its
NOX emissions with multiple units, by meeting a more
stringent NOX limit of 185 ppmvd at 7% O2.
Covanta currently operates SNCR on each of the six MWC units to meet
    VADEQ determined the following control measures as NOX
RACT for each MWC unit at Covanta Fairfax and Covanta Alexandria/
Arlington: the installation and operation of Covanta's proprietary low
NOX combustion system, the operation (and optimization as
needed) of the existing SNCR, a daily NOX average limit of
110 ppmvd corrected at 7% O2, and an annual NOX
average limit of 90 ppmvd at 7% O2. These NOX
limits are more stringent than the SIP-approved source-specific RACT
limits for each unit. The NOX RACT control requirements for
the four MWC units at Covanta Fairfax have been adopted as part of the
facility's Permit to Operate issued by VADEQ on February 8, 2019.
Similarly, the NOX RACT control requirements for the three
MWC units at Covanta Alexandria/Arlington have been adopted as part of
the facility's Permit to Operate issued by VADEQ on February 8, 2019.
These permits include a schedule for completing installation of the
additional NOX control on each unit and necessary provisions
for each facility to demonstrate compliance with the applicable
NOX control requirements.
    EPA believes that VADEQ has considered and adopted reasonably
available NOX and/or VOC controls for each of these
facilities. EPA finds that the additional NOX control
requirements and compliance demonstration requirements adopted for the
affected units in the January 31, 2019 Permit to Operate for Possum
Point Power Station, the February 8, 2019 Permit to Operate Covanta
Fairfax, and the February 8, 2019 Permit to Operate Covanta Alexandria/
Arlington are adequate to meet RACT for these sources. EPA also finds
that re-certification of existing source-specific requirements for
Possum Point Station is adequate to meet RACT. Further, EPA determines
that the additional NOX RACT control requirements adopted as
part of the Federally enforceable permit for each facility are more
stringent than the applicable SIP-approved NOX RACT
requirements, so that approval of these permits into the SIP would be
consistent with section 110(l) of the CAA. Additional details on EPA's
evaluation of Virginia's February 1, 14, and 15, 2019 SIP revisions are
provided in the technical support document for this rulemaking action,
available online at, Docket ID: EPA-R03-OAR-
III. Proposed Action
    EPA finds that the Virginia's SIP revisions submitted on February
1, 14, and 15, 2019 and addressing source-specific RACT for Possum
Point Power Station, Covanta Fairfax, and Covanta Alexandria/Arlington,
are adequate to meet RACT requirements set forth under the CAA for the
2008 ozone NAAQS, specifically major non-CTG VOC RACT, major
NOX RACT, and OTR RACT. EPA is proposing to approve
Virginia's SIP revisions to satisfy sections 172(c)(1), 182(b)(2)(C),
182(f), and 184(b)(1)(B) for implementation of the 2008 ozone NAAQS.
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 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
[[Page 37610]]
    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. 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 three Federally enforceable permits, each addressing
NOX and or VOC RACT under the 2008 ozone NAAQS for a major
NOX and/or VOC source, as discussed in section II of this
preamble. EPA has made, and will continue to make, these materials
generally available through and at the EPA
Region III Office (please contact the person identified in the For
Further Information Contact section of this preamble for more
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,
     Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted 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, the proposed rule, addressing source-specific RACT
under the 2008 ozone NAAQS for Northern Virginia, 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).
    In addition, this proposed rule, addressing source-specific RACT
under the 2008 ozone NAAQS for Northern Virginia, 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.
List of Subjects in 40 CFR Part 52
    Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
    Authority: 42 U.S.C. 7401 et seq.
    Dated: July 23, 2019.
Diana Esher,
Acting Regional Administrator, Region III.
[FR Doc. 2019-16439 Filed 7-31-19; 8:45 am]