TIRE DERIVED FUEL: PRIVATE

ENVIRONMENTAL CHARACTERISTICS AND PERFORMANCE

Presented by

Terry Gray, President

T.A.G. Resource Recovery

at

The First Northeast Regional Scrap Tire Conference

Albany, New York

June 15, 2004

PERSPECTIVE

	In an ideal world, we would endlessly recover and reuse all resources - and we would do so without detrimental impact on our environment.  However, we have significant differences of opinion about practical compromises required in today's real world.  Some are fixed on achieving the ideal "perpetual recycling" objective and are unwilling to support interim compromises for fear of jeopardizing achievement of the ultimate objective.  Others recognize the value of resources conserved through interim steps and believe that these steps contribute to the evolution of even greater conservation.

	This debate has impacted virtually all "waste" materials, including scrap tires.  Tires represent a significant resource.  Ideally, a tire's polymerized rubber mixture would be perpetually reused.  However, today's applications for this material consume less than 15% of the waste tires generated annually in North America.  These markets are growing slowly in spite of intense market development efforts, and even the most optimistic projections show less than 30% utilization in 5 years.

	Unless other applications are embraced and developed, the remainder of this resource will be squandered through landfilling or become a stockpiled public liability posing public health and environmental hazards.  Since no one consciously wants to waste a valuable resource, other applications that are compatible with our environment should be developed.  Avoiding unnecessary consumption of natural energy resources through alternative use of waste tires is a worthy objective if it can be done without a counter-balancing negative impact on our environment.  For perspective, the following sections examine chemical characteristics and historical environmental experience of waste tires as an energy resource.

	CHEMICAL CHARACTERISTICS OF SCRAP TIRES

	The chemical characteristics of any energy resource impact its environmental acceptability.  Tires are a hydrocarbon-based material derived from oil and gas.  Some inorganic materials are added to enhance reactions or performance properties.  Tires have a heat content of 7,800 to 8,600 kcal/kg (14,000 to 15,500 Btu/pound), depending on the type of tire and degree of wire removal.  By comparison, coal that may be displaced by use of tires typically contains 5,550 to 7,200 kcal/kg (10,000 to 13,000 Btu/pound).

	The composition of tires and coal vary depending on type and source.  However, Exhibit 1 provides representative proximate and ultimate analyses of tire-derived fuel (TDF) with 90+% of the reinforcing wire removed and a bituminous eastern US steam coal.   Proximate analysis defines basic combustion characteristics.  Ultimate analysis defines elemental composition.

	A comparison of the proximate analyses indicates that tires offer efficiency advantages versus coal.  For instance, tires generally have lower moisture content than coal.  Since energy required to heat and vaporize inherent water is generally non-recoverable in the energy conversion process, lower moisture content can translate into higher energy utilization efficiency.  Lower ash content of TDF (without wire) offers a similar advantage versus coal.  A tire's higher volatile-to-fixed carbon ratio enhances its ability to combust rapidly and completely.  Based on proximate analysis, tires compare favorably to coal as an energy source.

	Based on ultimate analysis, tires offer some additional advantages and disadvantages.  When compared to many eastern coals, TDF's lower sulfur content (especially in terms of pounds/million Btu) offers the potential advantage of decreasing SOx emissions.  However, many western coals have lower sulfur content.

	TDF has a lower carbon-to-hydrogen ratio, theoretically reducing carbon dioxide greenhouse gas generation since hydrogen converts to water in the combustion process.  Lower inherent nitrogen content can marginally decrease NOx emissions.

	The chlorine content of tires is higher in this specific example, but it is comparable to many coals.  In addition, the chlorine content has been significantly reduced in many newer tires as the chlorinated butyl inner liner has been replaced by alternative materials.

	Elemental ash analysis provided in Exhibit 2 indicates that tires generally contain metal concentrations comparable to, or lower than, coal with one notable exception.  Zinc oxide is added to tires as part of the rubber vulcanization process at levels approaching 1.0 - 1.5% by weight.  Therefore, zinc levels in tires are much higher than coal.  Applications using tires as an energy resource must be able to control zinc emissions to avoid a negative environmental impact.

	From a chemical standpoint, tires offer both environmental advantages and disadvantages versus coal.  Therefore, tires must be used in applications that utilize their advantages and properly control their disadvantages for them to provide a valuable and environmentally-friendly energy resource.

	HISTORICAL ENVIRONMENTAL PERFORMANCE

	Background

	Scrap tires have been utilized as a supplemental energy source in Japan, Europe and the United States since the 1970s.  The experience base has increased significantly during the last 10 - 15 years as tires have been recognized as an acceptable fuel for some combustion processes.  Applications using scrap tires have broadened to include cement kilns, industrial boilers, traditionally-conservative utilities and dedicated electrical generation facilities.  The following discussion provides examples of demonstrated environmental performance for major applications.

	Pulp and Paper Industry

	The pulp and paper industry combusts bark and waste wood in stoker-fired boilers to provide steam and power required for processing operations.  Wood is combusted on moving grates that also transport residual ash from the boiler.  Coal, oil or gas can be fired into the boiler above the grate to enhance combustion and maintain operating temperatures, especially when waste wood moisture content is high from rain.

	This application utilizes tire derived fuel (TDF) obtained by processing scrap tires into uniform, flowable chips less than 2 inches by 2 inches in size.  Bead wire is often removed magnetically to avoid fouling of grates and ash handling systems.  TDF can be introduced separately or as an integral part of the wood mixture with relatively simple, inexpensive metering systems.  TDF's high volatile carbon content enhances combustion of wood on the grate and improves fuel efficiency.

	The environmental impact associated with use of TDF in this application is dependent upon characteristics of the displaced fossil fuel and system environmental control equipment.  The two predominant factors controlling environmental acceptability are SOx and particulate (zinc oxide) emissions.  SOx emissions may decrease if TDF displaces coal or oil with higher sulfur content.  Alternatively, SOx can be controlled by scrubbers present in some systems, especially if the scrubbers operate at a neutral or basic pH.  Particulate emissions can be controlled by electrostatic precipitators (ESPs) or baghouses.  In general, many environmentally acceptable applications occur when coal is displaced in systems with baghouses or ESPs.

	Based on data compiled by the Rubber Manufacturers Association, 17 U.S. paper mills used approximately 26 million scrap tires as TDF in 2003 in compliance with applicable regulations, and others are undertaking testing.  Usage has fluctuated, but high cost of fossil fuels has led to a significant resurgence in TDF usage in paper mills as new mills have completed environmental testing and existing users have maximized consumption, especially in southeastern facilities.  Usage during 2004 is expected to exceed 30 million waste tires

	The International Paper facility in Bucksport, Maine has been one of the largest users of TDF since 1990.  Their boiler is capable of consuming up to 3.5 tons of TDF per hour (14.5% by heat input) to produce almost 500,000 pounds of steam per hour.

	Exhibit 3 provides environmental data associated with performance testing conducted at this site.  A baseline test was conducted using their normal mixture of gas, bark, coal and sludge.  TDF was then substituted for coal at levels representing 6.3%, 10.3%, and 14.5% of heat input.  At the maximum TDF level, NOx, SOx and total hydrocarbon emissions remained virtually unchanged, while particulate matter increased 6%.  Among the metals, beryllium and chromium decreased, lead remained below detection limits and cadmium increased.  Zinc increased significantly percentage-wise, but total quantities remained acceptable.  Overall particulate emissions remained well within acceptable limits.

	Performance data has also confirmed environmental acceptability of TDF in similar paper mills and industrial boilers in 20 states.  Several of these states (including Oregon, Washington, California and Florida) are recognized for their environmental sensitivity and rigorous regulatory enforcement.  However, these applications must be carefully screened to define facilities capable of using TDF within environmentally acceptable limits.  Only a small percentage of industrial boilers have the required combination of system design, permitting conditions and fuel usage conducive to appropriate TDF usage.

	Public Utility Boilers

	During 2003, there were at least 29 industrial and utility facilities consuming the equivalent of 40 million tires according to RMA.  This industry segment continues to increase with additional growth projected in the future.

	TDF can only be used efficiently in specific types of utility boilers (primarily cyclone, fluidized-bed and stoker-grate units) offering adequate retention time for complete combustion of nominal 1 inch (minus 2 inch) TDF.  This is the smallest TDF material that can generally be produced at costs competitive with coal and other fossil fuels.  These units consume large quantities of fuel, so small percentages of TDF (2-4%) can use up to 5,000,000 tires/year in a single boiler.

	Several factors influence use of TDF in the utility industry, including:

 (1)	Canada and the United States executed agreements designed to reduce the impact of acid rain through mandatory reductions in SOx emissions.  Major coal-fired utilities using Midwestern and eastern coals have been under intense pressure to achieve mandatory reductions at minimal cost to their customers.  They are faced with purchasing expensive low-sulfur coal or making substantial capital investments in additional air pollution control equipment.  As a direct result, conservative utilities have begun to recognize the potential value of TDF as an alternative fuel with a lower sulfur content than some local coal.  Use of TDF offers an opportunity to concurrently reduce both SOx emissions and fuel costs, while providing a partial solution to historical scrap tire disposal and stockpiling problems.

 (2)	Deregulation of utilities has been a double-edged sword in terms of TDF usage. Some older marginal units that were using TDF have been shut down, decreasing TDF usage.  However, more utilities are considering TDF usage as a method of cost reduction in an extremely competitive environment.  In addition, new fluidized bed boilers have begun to use TDF with outstanding environmental performance.

 (3)	The Clean Air Act Amendment has not yet been fully developed, but it could significantly impact all facilities using solid fuels.  It could force conversion to oil and gas as an alternative to expending millions of dollars to achieve conformance on existing coal fuel.  Depending on the final form of this regulation, all solid fuels, including TDF, could be negatively impacted.

	TDF usage in utility cyclone boilers is expanding.  Pulverized coal is introduced tangentially into a large cylindrical chamber and combusted, with ash falling into a fluid collection system at the bottom.  TDF must generally meet stringent size restrictions (minus 2 inches in all dimensions, averaging 1 inch or less) to enhance complete combustion and material handling through coal systems.

	Otter Tail Power Company has been using up to 60,000 tons of TDF per year at its plant in Big Stone, South Dakota.  TDF has reportedly proven to enhance combustion control and efficiency when added to their primary low-Btu lignite fuel.  The facility operates in compliance with all applicable regulations, but detailed data is not available.

	Wisconsin Power and Light has conducted extensive tests using TDF as a supplemental fuel in its cyclone boiler at Beloit.  The system has an ESP for particulate control.  Comparative criteria pollutant data is provided in Exhibit 4.  Particulate, SOx, hydrochloric acid and hydrofluoric acid concentrations decreased with use of 7% TDF. However, NOx, CO and hydrocarbons increased, but remained within applicable permit limits.  WP&L constructed its own TDF processing facility based on economics and supply considerations, but encountered initial difficulty in achieving production expectations.  In addition to these examples, TVA and Illinois Power have conducted extensive trials and are using TDF in cyclone boilers.

	Circulating fluidized bed boilers represent one of the newer systems designed to minimize environmental impact from use of solid fossil fuels.  High turbulence and uniform heat distribution allow fluidized beds to operate at lower temperatures to minimize NOx formation.  Ammonia injection may also be used for supplemental NOx reduction.  Limestone is commonly used as the circulating bed media, providing efficient SOx control through integral mixing with combustion gases.  Sophisticated baghouses and/or electrostatic precipitators provide particulate removal.

	These systems represent environmentally-viable candidates for use of nominal 1-inch TDF.  Stockton Cogen in Stockton, California conducted extensive trials with financial assistance from the California Integrated Waste Management Board to define the emissions characteristics associated with use of up to 20% TDF (by heat).  The results of this analysis are compared to the facility's pre-existing lower (state or local) permit limit in Exhibit 5.  All emissions were well within permit limits, with particulate and hydrocarbons being less than 25% of established limits.

	Tires have even been used as a primary fuel in dedicated, specially designed power boilers in California and Connecticut using 5 million and 10 million tires per year, respectively.  After some initial difficulties associated with scale up of this technology, these facilities have reportedly operated in compliance with strict new-source performance criteria.  The Connecticut facility is still operating, but the California plant has been shut down due to economic and political factors associated with a major fire (initiated by a lightening strike during a storm) in an adjacent stockpile that was being abated by supplying tires to the facility.

	Cement Kilns

	Scrap tires have been used as a supplemental fuel in cement kilns in Europe and Japan since the 1970s and currently represent the largest application in North America.  Only Calvaras Cement in California consumed waste tires 15 years ago.  In 2003, 42 facilities used whole tires or TDF as a supplemental energy source in 62 kilns, consuming 53 million waste tires according to RMA.  Others are conducting performance tests targeted at future use.

	Some factors impacting current interest in scrap tires as a supplemental energy source in kilns deserve mention:

Logistics - Kilns are often located near market population centers with large waste tire quantities and difficult tire disposal problems, providing efficient logistics.

Energy Intensity - Kilns are energy intensive, allowing consumption of 500,000 - 1,500,000 million tires/year/kiln.  TDF energy cost savings versus fossil fuels can provide a competitive economic advantage.

Rigorous Combustion Conditions - A unique combination of high temperatures, long residence times and turbulent air flow promote complete combustion of organic compounds contained in tires.

Inherent SOx Control - Limestone used in cement manufacture is commonly used in APC systems to absorb SOx, providing inherent SOx control.

Ash Utilization - Ash resulting from tire combustion becomes an integral component of the cement product, eliminating ash disposal requirements.

Steel Use - Reinforcing wire is constructively consumed as a replacement for purchased natural resources or alternative materials containing iron.

Broad Applicability - Demonstrated technology allows use of tires in older long kilns, as well as newer preheater and precalciner units.  Many kilns use whole tires without additional processing.

	Although these factors encourage use of tires as a supplemental fuel in kilns, demonstrated performance is a critical consideration in establishing environmental acceptability of this application.  Extensive environmental data has been generated for a variety of kiln configurations and fuel displacements.  Time limitations preclude discussion of all available data, but several examples are included.

	Exhibit 6 provides comparative data resulting from comprehensive tests conducted by Florida Crushed Stone.  TDF representing 14% energy displacement was introduced into the riser section of their preheater kiln.  Particulate and SOx emissions declined with TDF use.  Volatile organics increased but semi-volatile organics decreased by an even greater margin, resulting in a net reduction in organic emissions.  Changes in metal concentrations were nominal.  Comprehensive testing of dioxins and furans showed a net reduction of over 50% with TDF use.  Florida Crushed Stone is currently using approximately 800,000 scrap tires per year as an alternative energy source in full compliance with all applicable regulations.

	Performance results for Ashgrove Cement's kiln in Durkee, Oregon are provided in Exhibit 7.  Emissions of particulate, SOx, chlorides and all heavy metals declined or remained constant.  Total hydrocarbons increased about 10%, but polynuclear aromatics declined about 10%.  This facility completed a comprehensive PSD review associated with its use of other waste fuels, and is fully permitted for waste tire usage.  This plant's performance is accepted in one of the most environmentally-sensitive states in the U.S.

	Several of the southwestern cement plants have undergone extensive testing.  Results of California Portland Cement Company's emissions results for its Colton plant are summarized in Exhibit 8.  Some criteria decreased with use of tires, while others increased.  For example, total particulate increased less than 10%, while non-methane hydrocarbons decreased about 18%.  Recognized carcinogens like benzene and toluene decreased.  Total PCDD/PCDF materials increased nominally in quantity.  Most PCBs and PAH's declined with tire usage, while hydrochloric and hydrofluoric acids increased.  Hexavalent chromium, barium, cadmium lead and nickel emissions declined, while zinc and mercury increased.  While the most critical impact will probably depend upon the reviewer's perspective, most changes were relatively minor and the net impact appears to be relatively balanced.

	In order to place these relative impacts into a technically-structured perspective, Cal Portland engaged an experienced contractor to conduct a comparative Health Risk Assessment using the latest versions of the ISC dispersion model and ACE health effects model specified by the California EPA.  Based on this evaluation, the individual carcinogenic risk declined 47% with TDF usage, while the non-carcinogenic health effects resulting from short-tern exposure (acute hazard index) fell 94% and the non-carcinogenic health effects of continuous exposure (chronic health impact) decreased 72%.  None of us like to contemplate any exposure, and some may even question the assessment methodology, but most of us prefer reductions like those demonstrated at Cal Portland.

	Cement kilns constructively utilize more waste tires than any other single application.  Kilns are an important component of waste tire management in most states considered to have successful programs.  Any state that is not fully utilizing its waste tire resource may wish to objectively evaluate the environmental and economic merits of this application.

	SUMMARY

	Scrap tires can be an environmentally-compatible alternative energy resource when used in appropriate applications.  Energy utilization is an important component of successful scrap tire management programs within the U.S., allowing this resource to be used rather than wasted.  The net result has been substantial conservation of non-renewable fossil fuels.  When the demonstrated performance of tires as an energy resource is objectively evaluated, many jurisdictions have concluded that our environment is better served by recognizing the value of this resource rather than wasting it while waiting for ideal solutions.  Good programs recognize the importance of diverse applications.

Acknowledgement:  This document was written by Terry Gray, President of T.A.G. Resource Recovery, with guidance and peer review from EPA and industry members of the EPA RCC TDF Subcommittee.

EXHIBIT 1

COMPARATIVE CHEMICAL CHARACTERISTICS

CHARACTERISTIC	EASTERN BITUMINOUS COAL	 TDF    (90+% WIRE FREE)

PROXIMATE ANALYSIS (% AS RECEIVED)

MOISTURE	7.76	0.62

ASH	11.05	4.78

VOLATILE	34.05	66.64

FIXED CARBON	47.14	27.96

  TOTAL	100.00	100.00

ULTIMATE ANALYSIS (% AS RECEIVED)

CARBON	67.69	83.27

HYDROGEN	4.59	7.09

NITROGEN	1.13	0.24

SULFUR	2.30	1.83

ASH	11.05	4.78

MOISTURE	7.76	0.62

OXYGEN (by difference)	5.48	2.17

  TOTAL	100.00	100.00

EXHIBIT 2

ELEMENTAL METALS ANALYSIS

(%, OXIDE FORM)

ELEMENT (OXIDE)	EASTERN BITUMINOUS COAL	TDF (90+% WIRE FREE)

Aluminum	2.29	<0.01

Barium	 -	nd

Cadmium	 -	0.0006

Calcium	0.36	0.378

Chromium	 -	0.0097

Iron	2.09	0.321

Lead	 -	0.0065

Magnesium	0.08	<0.01

Manganese	 -	<0.01

Phosphorous	0.07	<0.01

Potassium	0.22	<0.01

Titanium	0.09	<0.01

Silicon	5.30	0.516

Sodium	0.05	<0.01

Strontium	 -	<0.01

Zinc	0.01	1.52

Chloride	 -	0.149

Fluoride	 -	0.001

EXHIBIT 3

	COMPARATIVE EMISSIONS

INTERNATIONAL PAPER MILL

BUCKSPORT, MAINE

	(EXPRESSED AS POUNDS/MM BTU)

CRITERIA	BASELINE	14.5% TDF (BY HEAT)	PERCENT CHANGE

N O x	0.274	0.273	0

S O x	0.508	0.51	0

PARTICULATE	0.053	0.056	6

TOTAL HYDROCARBONS	1.17 E-3	1.18 E-3	1

BERYLLIUM	1.06 E-6	0.73 E-6	-31

CADMIUM	0.60 E-6	0.78 E-6	30

CHROMIUM	12.1 E-6	6.36 E-6	-47

LEAD	<10 E-6	<10 E-6	0

ZINC	0.26 E-3	2.56 E-3	885

EXHIBIT 4

COMPARATIVE EMISSIONS

FROM A CYCLONE BOILER

WISCONSIN P&L

CRITERIA	UNITS	BASELINE	7% TDF (BY HEAT)	PERCENT CHANGE

N O x	LB/MM BTU	0.79	0.91	16

S O x	LB/MM BTU	1.14	0.87	-34

PARTICULATE	LB/MM BTU	0.52	0.14	-73

CO	LB/HR	1.52	7.26	377

TOTAL HYDROCARBONS	LB/HR	5.16	10.27	99

HCL	LB/HR	25.27	19.89	-23

HF	LB/HR	1.86	1.34	-28

EXHIBIT 5

EMISSIONS FROM A

CIRCULATING FLUIDIZED BED BOILER

STOCKTON COGEN

(STOCKTON, CALIFORNIA)

(EXPRESSED AS POUNDS/HOUR)

CRITERIA	20% TDF        (BY HEAT)	LOWER PERMIT LIMIT

N O x	25.06	39.00

S O x	33.40	59.20

PARTICULATE	2.19	10.00

CO	20.90	22.90

TOTAL HYDROCARBONS	<0.38	1.88

EXHIBIT 6

ENVIRONMENTAL PERFORMANCE DATA

TDF INTRODUCTION INTO THE RISER SECTION

OF FLORIDA CRUSHED STONE'S PREHEATER KILN

(expressed as pounds/hour)

CRITERIA	BASELINE	14% TDF

PARTICULATE	56.80	52.21

S O x	595.15	551.30

VOLATILE ORGANICS

  Acetone	0.02	0.02

  Benzene	0.08	0.15

  Toluene	0.01	0.20

  Chloromethane	<0.01	0.03

  Others	<0.03	0.04

    TOTAL	0.15	0.44

SEMI-VOLATILE ORGANICS (C16-C18)	5.01	0.90

METALS

  Aluminum	6.86	8.13

  Arsenic	<0.004	<0.004

  Barium	0.02	0.02

  Cadmium	<0.005	0.01

  Chromium	0.02	0.01

  Cobalt	0.01	<0.002

  Copper	0.03	0.03

  Iron	1.39	1.30

  Lead	0.13	0.04

  Magnesium	0.50	0.55

  Mercury	0..04	0.01

  Molybdenum	0.02	0..02

  Nickel	<0.02	<0.02

  Selenium	<0.004	<0.004

  Silver	<0.009	<0.009

  Titanium	0.22	0.26

  Vanadium	<0.02	<0.02

  Zinc	3.12	1.68

EXHIBIT 6   (CONTINUED)

	ENVIRONMENTAL PERFORMANCE DATA

TDF INTRODUCTION INTO THE RISER SECTION

OF FLORIDA CRUSHED STONE'S PREHEATER KILN

(expressed as pounds/hour)

	CRITERIA	  	AVG EMISSION RATE (10 E-6 LBS/HR)	EQUIV 2378-TETRA DIOXIN EMISSIONS (10 E-6 LBS/HR)

	 	COAL	14% TDF	COAL	14% TDF

DIOXINS

  2378-tetra	1.00000	0.004	ND	0.004	ND

  12378-penta	0.50000	0.035	ND	0.017	ND

  123478-hexa	0.04000	0.048	ND	0.002	ND

  123789-hexa	0.04000	0.084	ND	0.003	ND

  123678-hexa	0.04000	0.125	ND	0.005	ND

  1234678-hepta	0.00100	1.210	0.062	0.001	<0.001

  octa	0.00000	5.221	1.100	0.000	0.000

  other tetra	0.01000	0.308	0.061	0.003	0.001

  other penta	0.00500	0.473	0.079	0.002	<0.001

  other hexa	0.00040	0.766	0.114	<0.001	<0.001

  other hepta	0.00001	1.693	0.114	<0.001	<0.001

    SUBTOTAL	 	9.667	1.530	0.037	0.001

FURANS

  2378-tetra	0.10000	0.096	0.061	0.010	0.006

  12378-penta	0.10000	0.024	ND	0.002	ND

  23478-penta	0.10000	0.036	ND	0.004	ND

  23478-hexa	0.01000	0.048	ND	<0.001	ND

  123678-hexa	0.01000	0.024	ND	<0.001	ND

  234678-hexa	0.01000	0.024	ND	<0.001ND

  123789-hexa	0.01000	ND	ND	ND	ND

  234678-hepta	0.00100	0.060	ND	<0.001	ND

  234789-hepta	0.00100	ND	ND	ND	ND

  octa	0.00000	0.048	ND	0.000	ND

  other tetra	0.00100	0.204	0.149	<0.001	<0.001

  other penta	0.00100	0.130	0.088	<0.001	<0.001

  other hexa	0.00010	0.006	0.009	<0.001	ND

  other hepta	0.00001	0.072	ND	<0.001	ND

    SUBTOTAL	 	0.883	0.307	0.017	0.006

TOTAL  (10E-6 LB/HR)	 	10.550	1.837	0.054	0.007

EXHIBIT 7

ENVIRONMENTAL PERFORMANCE DATA

TDF INTRODUCTION INTO RISER SECTION

OF ASHGROVE CEMENT'S PREHEATER KILN

CRITERIA	UNITS	BASELINE	9-10% TDF	PERMIT LIMIT

PARTICULATE	lbs/hr	5.27	4.83	18

S O x	lbs/hr	<1.5	<1.2	6.3

CHLORIDES	lbs/hr	0.268	0.197	NA

TOTAL HYDROCARBONS	lbs/hr	3	3.3	NA

PNA	lbs/hr	0.0058	0.0053	NA

HEAVY METALS

  Arsenic	micrograms	0.2	0.2	NA

  Cadmium	"	3	2	NA

  Chromium	"	30	ND	NA

  Nickel	"	30	ND	NA

  Zinc	"	35	35	NA

  Copper	"	37	13	NA

  Lead	"	ND	ND	NA

  Iron	"	400	200	NA

  Barium	"	ND	ND	NA

  Vanadium	"	ND	ND	NA

EXHIBIT 8

	ENVIRONMENTAL PERFORMANCE DATA

CALIFORNIA PORTLAND CEMENT KILN

(expressed as pounds/hour)

CRITERIA	EXPONENT	BASELINE	12%TDF

PARTICULATE	 	7.35	8.01

N O x (ppm)	 	208.80	104..2

CO (ppm)	 	104.20	159.30

VOLATILE ORGANICS

  Acetaldehyde 	 	0.34	0.05

  Benzene	 	2.65	2.29

  Formaldehyde	 	0.88	0.11

  Toluene	 	3.98	3.17

  Dichloromethane 	E-3	1.79	0.87

  O-xylene 	E-3	1.89	2.14

  Trimethyl benzenes 	E-3	1.56	3.99

METALS

  Antimony	E-4	2.32	<2.28

  Arsenic	E-4	4.05	0.85

  Barium	E-3	1.20	0.48

  Cadmium	E-4	2.27	1.77

  Chromium (Total)	E-4	3.44	3.94

  Chromium (Hexavalent)	E-4	2.33	1.13

  Copper	E-3	1.11	0.72

  Lead	E-3	1.19	0.59

  Manganese	E-3	1.96	2.06

  Mercury	E-3	4.54	8.33

  Nickel	E-4	5.81	3.00

  Selenium	E-4	ND<1.97	ND<6.54

  Silver	E-5	ND<3.94	<4.55

  Thallium	E-5	<2.52	<2.47

  Zinc	E-3	4.71	9.41

EXHIBIT 8  (CONTINUED)

	ENVIRONMENTAL PERFORMANCE DATA

CALIFORNIA PORTLAND CEMENT KILN

(expressed as pounds/hour)

CRITERIA	EXPONENT	BASELINE	12%TDF

NON-METHANE HYDROCARBONS	 	18.16	14.81

PCDD/PCDF	E-6	1.58	1.93

2378 TCDD TOX EQUIV	E-8	1.05	1.68

PCB's	E-6	3.16	2.89

PAH	E-2	4.31	3.44

HCl	 	<0.017	0.43

HF	 	0.016	0.024

  PAGE  1

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[Federal Register Volume 79, Number 238 (Thursday, December 11, 2014)]
[Rules and Regulations]
[Pages 73478-73482]
[FR Doc No: 2014-28979]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 300

[EPA-HQ-SFUND-2014-0318; FRL-9920-06-OSWER]

National Priorities List

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Comprehensive Environmental Response, Compensation, and
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investigations will allow the EPA to assess the nature and extent of
public health and environmental risks associated with the site and to
determine what CERCLA-financed remedial action(s), if any, may be
appropriate. This rule adds one site, Colorado Smelter, to the General
Superfund section of the NPL.

DATES: The document is effective on January 12, 2015.

ADDRESSES: Contact information for the EPA Headquarters and EPA Region
8 dockets:
     Docket Coordinator, Headquarters; U.S. Environmental
Protection Agency; CERCLA Docket Office; 1301 Constitution Avenue NW.;
William Jefferson Clinton Building West, Room 3334, Washington, DC
20004, 202/566-0276.
     Sabrina Forrest, Region 8 (CO, MT, ND, SD, UT, WY), U.S.
EPA, 1595 Wynkoop Street, Mailcode 8EPR-B, Denver, CO 80202-1129; 303/
312-6484.

FOR FURTHER INFORMATION CONTACT: Terry Jeng, phone:<PHONE_NUMBER>,
email<EMAIL_ADDRESS>Site Assessment and Remedy Decisions Branch,
Assessment and Remediation Division, Office of Superfund Remediation
and Technology Innovation (Mailcode 5204P), U.S. Environmental
Protection Agency; 1200 Pennsylvania Avenue NW., Washington, DC 20460;
or the Superfund Hotline, phone<PHONE_NUMBER> or<PHONE_NUMBER> in the
Washington, DC, metropolitan area.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
    A. What are CERCLA and SARA?
    B. What is the NCP?
    C. What is the National Priorities List (NPL)?
    D. How are sites listed on the NPL?
    E. What happens to sites on the NPL?
    F. Does the NPL define the boundaries of sites?
    G. How are sites removed from the NPL?
    H. May the EPA delete portions of sites from the NPL as they are
cleaned up?
    I. What is the construction completion list (CCL)?
    J. What is the Sitewide Ready for Anticipated Use measure?
    K. What is state/tribal correspondence concerning NPL listing?
II. Availability of Information to the Public
    A. May I review the documents relevant to this final rule?
    B. What documents are available for review at the EPA
headquarters docket?
    C. What documents are available for review at the EPA Region 8
docket?
    D. How do I access the documents?
    E. How may I obtain a current list of NPL sites?
III. Contents of This Final Rule
    A. Addition to the NPL
    B. What did the EPA do with the public comments it received?
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act (PRA)
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act (NTTAA)
    J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
    K. Congressional Review Act

I. Background

A. What are CERCLA and SARA?

    In 1980, Congress enacted the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. 9601-9675 (``CERCLA'' or
``the Act''), in response to the dangers of uncontrolled releases or
threatened releases of hazardous substances, and releases or
substantial threats of releases into the environment of any pollutant
or contaminant that may present an imminent or substantial danger to
the public health or welfare. CERCLA was amended on October 17, 1986,
by the Superfund Amendments and Reauthorization Act (``SARA''), Public
Law 99-499, 100 Stat. 1613 et seq.

B. What is the NCP?

    To implement CERCLA, the EPA promulgated the revised National Oil
and Hazardous Substances Pollution Contingency Plan (``NCP''), 40 CFR
part 300, on July 16, 1982 (47 FR 31180), pursuant to CERCLA section
105 and Executive Order 12316 (46 FR 42237, August 20, 1981). The NCP
sets guidelines and procedures for responding to releases and
threatened releases of hazardous substances, or releases or substantial
threats of releases

into the environment of any pollutant or contaminant that may present
an imminent or substantial danger to the public health or welfare. The
EPA has revised the NCP on several occasions. The most recent
comprehensive revision was on March 8, 1990 (55 FR 8666).
    As required under section 105(a)(8)(A) of CERCLA, the NCP also
includes ``criteria for determining priorities among releases or
threatened releases throughout the United States for the purpose of
taking remedial action and, to the extent practicable, taking into
account the potential urgency of such action, for the purpose of taking
removal action.'' ``Removal'' actions are defined broadly and include a
wide range of actions taken to study, clean up, prevent or otherwise
address releases and threatened releases of hazardous substances,
pollutants or contaminants (42 U.S.C. 9601(23)).

C. What is the National Priorities List (NPL)?

    The NPL is a list of national priorities among the known or
threatened releases of hazardous substances, pollutants or contaminants
throughout the United States. The list, which is appendix B of the NCP
(40 CFR part 300), was required under section 105(a)(8)(B) of CERCLA,
as amended. Section 105(a)(8)(B) defines the NPL as a list of
``releases'' and the highest priority ``facilities'' and requires that
the NPL be revised at least annually. The NPL is intended primarily to
guide the EPA in determining which sites warrant further investigation
to assess the nature and extent of public health and environmental
risks associated with a release of hazardous substances, pollutants or
contaminants. The NPL is of only limited significance, however, as it
does not assign liability to any party or to the owner of any specific
property. Also, placing a site on the NPL does not mean that any
remedial or removal action necessarily need be taken.
    For purposes of listing, the NPL includes two sections, one of
sites that are generally evaluated and cleaned up by the EPA (the
``General Superfund section'') and one of sites that are owned or
operated by other federal agencies (the ``Federal Facilities
section''). With respect to sites in the Federal Facilities section,
these sites are generally being addressed by other federal agencies.
Under Executive Order 12580 (52 FR 2923, January 29, 1987) and CERCLA
section 120, each federal agency is responsible for carrying out most
response actions at facilities under its own jurisdiction, custody or
control, although the EPA is responsible for preparing a Hazard Ranking
System (``HRS'') score and determining whether the facility is placed
on the NPL.

D. How are sites listed on the NPL?

    There are three mechanisms for placing sites on the NPL for
possible remedial action (see 40 CFR 300.425(c) of the NCP): (1) A site
may be included on the NPL if it scores sufficiently high on the HRS,
which the EPA promulgated as appendix A of the NCP (40 CFR part 300).
The HRS serves as a screening tool to evaluate the relative potential
of uncontrolled hazardous substances, pollutants or contaminants to
pose a threat to human health or the environment. On December 14, 1990
(55 FR 51532), the EPA promulgated revisions to the HRS partly in
response to CERCLA section 105(c), added by SARA. The revised HRS
evaluates four pathways: ground water, surface water, soil exposure and
air. As a matter of agency policy, those sites that score 28.50 or
greater on the HRS are eligible for the NPL. (2) Pursuant to 42 U.S.C.
9605(a)(8)(B), each state may designate a single site as its top
priority to be listed on the NPL, without any HRS score. This provision
of CERCLA requires that, to the extent practicable, the NPL include one
facility designated by each state as the greatest danger to public
health, welfare or the environment among known facilities in the state.
This mechanism for listing is set out in the NCP at 40 CFR
300.425(c)(2). (3) The third mechanism for listing, included in the NCP
at 40 CFR 300.425(c)(3), allows certain sites to be listed without any
HRS score, if all of the following conditions are met:
     The Agency for Toxic Substances and Disease Registry
(ATSDR) of the U.S. Public Health Service has issued a health advisory
that recommends dissociation of individuals from the release.
     The EPA determines that the release poses a significant
threat to public health.
     The EPA anticipates that it will be more cost-effective to
use its remedial authority than to use its removal authority to respond
to the release.
    The EPA promulgated an original NPL of 406 sites on September 8,
1983 (48 FR 40658) and generally has updated it at least annually.

E. What happens to sites on the NPL?

    A site may undergo remedial action financed by the Trust Fund
established under CERCLA (commonly referred to as the ``Superfund'')
only after it is placed on the NPL, as provided in the NCP at 40 CFR
300.425(b)(1). (``Remedial actions'' are those ``consistent with a
permanent remedy, taken instead of or in addition to removal actions. *
* *'' 42 U.S.C. 9601(24).) However, under 40 CFR 300.425(b)(2), placing
a site on the NPL ``does not imply that monies will be expended.'' The
EPA may pursue other appropriate authorities to respond to the
releases, including enforcement action under CERCLA and other laws.

F. Does the NPL define the boundaries of sites?

    The NPL does not describe releases in precise geographical terms;
it would be neither feasible nor consistent with the limited purpose of
the NPL (to identify releases that are priorities for further
evaluation), for it to do so. Indeed, the precise nature and extent of
the site are typically not known at the time of listing.
    Although a CERCLA ``facility'' is broadly defined to include any
area where a hazardous substance has ``come to be located'' (CERCLA
section 101(9)), the listing process itself is not intended to define
or reflect the boundaries of such facilities or releases. Of course,
HRS data (if the HRS is used to list a site) upon which the NPL
placement was based will, to some extent, describe the release(s) at
issue. That is, the NPL site would include all releases evaluated as
part of that HRS analysis.
    When a site is listed, the approach generally used to describe the
relevant release(s) is to delineate a geographical area (usually the
area within an installation or plant boundaries) and identify the site
by reference to that area. However, the NPL site is not necessarily
coextensive with the boundaries of the installation or plant, and the
boundaries of the installation or plant are not necessarily the
``boundaries'' of the site. Rather, the site consists of all
contaminated areas within the area used to identify the site, as well
as any other location where that contamination has come to be located,
or from where that contamination came.
    In other words, while geographic terms are often used to designate
the site (e.g., the ``Jones Co. Plant site'') in terms of the property
owned by a particular party, the site, properly understood, is not
limited to that property (e.g., it may extend beyond the property due
to contaminant migration), and conversely may not occupy the full
extent of the property (e.g., where there are uncontaminated parts of
the identified property, they may not be, strictly speaking, part of
the ``site''). The ``site'' is thus neither equal to, nor confined by,
the boundaries of any specific property that may give the site its
name, and the name itself should not be read to imply that this site is
coextensive with the

entire area within the property boundary of the installation or plant.
In addition, the site name is merely used to help identify the
geographic location of the contamination, and is not meant to
constitute any determination of liability at a site. For example, the
name ``Jones Co. plant site,'' does not imply that the Jones Company is
responsible for the contamination located on the plant site.
    EPA regulations provide that the remedial investigation (``RI'')
``is a process undertaken * * * to determine the nature and extent of
the problem presented by the release'' as more information is developed
on site contamination, and which is generally performed in an
interactive fashion with the feasibility study (``FS'') (40 CFR 300.5).
During the RI/FS process, the release may be found to be larger or
smaller than was originally thought, as more is learned about the
source(s) and the migration of the contamination. However, the HRS
inquiry focuses on an evaluation of the threat posed and therefore the
boundaries of the release need not be exactly defined. Moreover, it
generally is impossible to discover the full extent of where the
contamination ``has come to be located'' before all necessary studies
and remedial work are completed at a site. Indeed, the known boundaries
of the contamination can be expected to change over time. Thus, in most
cases, it may be impossible to describe the boundaries of a release
with absolute certainty.
    Further, as noted above, NPL listing does not assign liability to
any party or to the owner of any specific property. Thus, if a party
does not believe it is liable for releases on discrete parcels of
property, it can submit supporting information to the agency at any
time after it receives notice it is a potentially responsible party.
    For these reasons, the NPL need not be amended as further research
reveals more information about the location of the contamination or
release.

G. How are sites removed from the NPL?

    The EPA may delete sites from the NPL where no further response is
appropriate under Superfund, as explained in the NCP at 40 CFR
300.425(e). This section also provides that the EPA shall consult with
states on proposed deletions and shall consider whether any of the
following criteria have been met:
    (i) Responsible parties or other persons have implemented all
appropriate response actions required;
    (ii) All appropriate Superfund-financed response has been
implemented and no further response action is required; or
    (iii) The remedial investigation has shown the release poses no
significant threat to public health or the environment, and taking of
remedial measures is not appropriate.

H. May the EPA delete portions of sites from the NPL as they are
cleaned up?

    In November 1995, the EPA initiated a policy to delete portions of
NPL sites where cleanup is complete (60 FR 55465, November 1, 1995).
Total site cleanup may take many years, while portions of the site may
have been cleaned up and made available for productive use.

I. What is the construction completion list (CCL)?

    The EPA also has developed an NPL construction completion list
(``CCL'') to simplify its system of categorizing sites and to better
communicate the successful completion of cleanup activities (58 FR
12142, March 2, 1993). Inclusion of a site on the CCL has no legal
significance.
    Sites qualify for the CCL when: (1) Any necessary physical
construction is complete, whether or not final cleanup levels or other
requirements have been achieved; (2) the EPA has determined that the
response action should be limited to measures that do not involve
construction (e.g., institutional controls); or (3) the site qualifies
for deletion from the NPL. For the most up-to-date information on the
CCL, see the EPA's Internet site at http://www.epa.gov/superfund/cleanup/ccl.htm.

J. What is the Sitewide Ready for Anticipated Use measure?

    The Sitewide Ready for Anticipated Use measure represents important
Superfund accomplishments and the measure reflects the high priority
the EPA places on considering anticipated future land use as part of
the remedy selection process. See Guidance for Implementing the
Sitewide Ready-for-Reuse Measure, May 24, 2006, OSWER 9365.0-36. This
measure applies to final and deleted sites where construction is
complete, all cleanup goals have been achieved, and all institutional
or other controls are in place. The EPA has been successful on many
occasions in carrying out remedial actions that ensure protectiveness
of human health and the environment for current and future land uses,
in a manner that allows contaminated properties to be restored to
environmental and economic vitality. For further information, please go
to http://www.epa.gov/superfund/programs/recycle/pdf/sitewide_a.pdf.

K. What is state/tribal correspondence concerning NPL listing?

    In order to maintain close coordination with states and tribes in
the NPL listing decision process, the EPA's policy is to determine the
position of the states and tribes regarding sites that the EPA is
considering for listing. This consultation process is outlined in two
memoranda that can be found at the following Web site: http://www.epa.gov/superfund/sites/npl/hrsres/policy/govlet.pdf. The EPA has
improved the transparency of the process by which state and tribal
input is solicited. The EPA is using the Web and where appropriate more
structured state and tribal correspondence that (1) explains the
concerns at the site and the EPA's rationale for proceeding; (2)
requests an explanation of how the state intends to address the site if
placement on the NPL is not favored; and (3) emphasizes the transparent
nature of the process by informing states that information on their
responses will be publicly available.
    A model letter and correspondence between the EPA and states and
tribes where applicable, is available on the EPA's Web site at http://www.epa.gov/superfund/sites/query/queryhtm/nplstcor.htm.

II. Availability of Information to the Public

A. May I review the documents relevant to this final rule?

    Yes, documents relating to the evaluation and scoring of the sites
in this final rule are contained in dockets located both at the EPA
Headquarters and in the EPA Region 8 office.
    An electronic version of the public docket is available through
http://www.regulations.gov (see table below for docket identification
numbers). Although not all docket materials may be available
electronically, you may still access any of the publicly available
docket materials through the docket facilities identified below in
section II D. Refer to docket identification number EPA-HQ-SFUND-2014-
0318 for information regarding Colorado Smelter in Pueblo, CO.

B. What documents are available for review at the EPA headquarters
docket?

    The Headquarters docket for this rule contains the HRS score
sheets, the documentation record describing the information used to
compute the score and a list of documents referenced in

the documentation record. Because this site received comments during
the comment period, the Headquarters docket also contains a support
document that includes the EPA's responses to comments.

C. What documents are available for review at the EPA Region 8 docket?

    The EPA Region 8 docket contains all the information in the
Headquarters docket, plus the actual reference documents containing the
data principally relied upon by the EPA in calculating or evaluating
the HRS score. These reference documents are available only in the
Region 8 docket. The Region 8 docket also contains the support document
that includes the EPA's responses to comments.

D. How do I access the documents?

    You may view the documents, by appointment only, after the
publication of this rule. The hours of operation for the Headquarters
docket are from 8:30 a.m. to 4:30 p.m., Monday through Friday,
excluding federal holidays. Please contact the Region 8 docket for
hours. For addresses for the Headquarters and Region 8 dockets, see
Addresses section in the beginning portion of this preamble.

E. How may I obtain a current list of NPL sites?

    You may obtain a current list of NPL sites via the Internet at
http://www.epa.gov/superfund/sites/npl/index.htm or by contacting the
Superfund docket (see contact information in the beginning portion of
this document).

III. Contents of This Final Rule

A. Addition to the NPL

    This final rule adds the following site to the General Superfund
section of the NPL. This site is being added to the NPL based on HRS
score.
    General Superfund section:

------------------------------------------------------------------------
              State                      Site name         City/ county
------------------------------------------------------------------------
CO...............................  Colorado Smelter....  Pueblo.
------------------------------------------------------------------------

B. What did the EPA do with the public comments it received?

    The EPA reviewed all comments received on the Colorado Smelter
site, proposed May 12, 2014 (79 FR 26922), and responded to all
relevant comments. Comments are addressed in a response to comment
support document available in the public docket concurrently with this
rule.

IV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under
the PRA. This rule does not contain any information collection
requirements that require approval of the OMB.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. This rule
listing sites on the NPL does not impose any obligations on any group,
including small entities. This rule also does not establish standards
or requirements that any small entity must meet, and imposes no direct
costs on any small entity. Whether an entity, small or otherwise, is
liable for response costs for a release of hazardous substances depends
on whether that entity is liable under CERCLA 107(a). Any such
liability exists regardless of whether the site is listed on the NPL
through this rulemaking.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. This action imposes no enforceable duty on any
state, local or tribal governments or the private sector. Listing a
site on the NPL does not itself impose any costs. Listing does not mean
that the EPA necessarily will undertake remedial action. Nor does
listing require any action by a private party, state, local or tribal
governments or determine liability for response costs. Costs that arise
out of site responses result from future site-specific decisions
regarding what actions to take, not directly from the act of placing a
site on the NPL

E. Executive Order 13132: Federalism

    This final rule does not have federalism implications. It 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.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    This action does not have tribal implications as specified in
Executive Order 13175. Listing a site on the NPL does not impose any
costs on a tribe or require a tribe to take remedial action. Thus,
Executive Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because this action itself is procedural in
nature (adds sites to a list) and does not, in and of itself, provide
protection from environmental health and safety risks. Separate future
regulatory actions are required for mitigation of environmental health
and safety risks.

H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    The EPA believes the human health or environmental risk addressed
by this action will not have potential disproportionately high and
adverse human health or environmental effects on minority, low-income
or indigenous populations because it does not affect the level of
protection provided to human health or the environment. As discussed in
Section I.C. of the preamble to this action, the NPL is a list of
national priorities. The NPL is intended primarily to guide the EPA in
determining which sites warrant further

investigation to assess the nature and extent of public health and
environmental risks associated with a release of hazardous substances,
pollutants or contaminants. The NPL is of only limited significance as
it does not assign liability to any party. Also, placing a site on the
NPL does not mean that any remedial or removal action necessarily need
be taken.

K. Congressional Review Act

    This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
    Provisions of the Congressional Review Act (CRA) or section 305 of
CERCLA may alter the effective date of this regulation. Under 5 U.S.C.
801(b)(1), a rule shall not take effect, or continue in effect, if
Congress enacts (and the President signs) a joint resolution of
disapproval, described under section 802. Another statutory provision
that may affect this rule is CERCLA section 305, which provides for a
legislative veto of regulations promulgated under CERCLA. Although INS
v. Chadha, 462 U.S. 919,103 S. Ct. 2764 (1983), and Bd. of Regents of
the University of Washington v. EPA, 86 F.3d 1214,1222 (D.C. Cir.
1996), cast the validity of the legislative veto into question, the EPA
has transmitted a copy of this regulation to the Secretary of the
Senate and the Clerk of the House of Representatives.
    If action by Congress under either the CRA or CERCLA section 305
calls the effective date of this regulation into question, the EPA will
publish a document of clarification in the Federal Register.

List of Subjects in 40 CFR Part 300

    Environmental protection, Air pollution control, Chemicals,
Hazardous substances, Hazardous waste, Intergovernmental relations,
Natural resources, Oil pollution, Penalties, Reporting and
recordkeeping requirements, Superfund, Water pollution control, Water
supply.

    Dated: December 3, 2014.
Mathy Stanislaus,
Assistant Administrator, Office of Solid Waste and Emergency Response.

    40 CFR part 300 is amended as follows:

PART 300--NATIONAL OIL AND HAZARDOUS SUBSTANCES POLLUTION
CONTINGENCY PLAN

0
1. The authority citation for part 300 continues to read as follows:

    Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O.
12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR
2923, 3 CFR, 1987 Comp., p. 193.

0
2. Table 1 of Appendix B to part 300 is amended by adding an entry for
``Colorado Smelter'' in alphabetical order by state to read as follows:

Appendix B to Part 300 National Priorities List

                                       Table 1--General Superfund Section
----------------------------------------------------------------------------------------------------------------
                State                           Site name                 City/county              Notes a
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
CO..................................  Colorado Smelter............  Pueblo.................

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
 * * * * * * *
Notes:
a A = Based on issuance of health advisory by Agency for Toxic Substances and Disease Registry (if scored, HRS
  score need not be greater than or equal to 28.50).

* * * * *

[FR Doc. 2014-28979 Filed 12-10-14; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 79, Number 61 (Monday, March 31, 2014)]
[Notices]
[Pages 18091-18094]
[FR Doc No: 2014-07038]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-71793; File No. SR-NASDAQ-2014-026]

Self-Regulatory Organizations; The NASDAQ Stock Market LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change to
the Qualified Market Maker Program and NBBO Setter Incentive Program
Under Rule 7014, and To Modify the Rules Governing Fees Assessed for
Orders Executed in the NASDAQ Opening Cross Under Rule 7018

March 25, 2014.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on March 13, 2014, The NASDAQ Stock Market LLC (``NASDAQ'' or the
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') a proposed rule change as described in Items I and II
below, which Items have been prepared by the Exchange. The Commission
is publishing this notice to solicit comments on the proposed rule
change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    NASDAQ is proposing to make changes Qualified Market Maker
(``QMM'') Program under NASDAQ Rule 7014 and the removal of the NBBO
Setter Incentive Program as a separate section thereunder, as well as
to modify the rules governing fees assessed for orders executed in the
NASDAQ Opening Cross under NASDAQ Rule 7018.
    The text of the proposed rule change is available at NASDAQ's
principal office, and at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, NASDAQ included statements
concerning the purpose of, and basis for, the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of those statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant parts of such
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and the
Statutory Basis for, the Proposed Rule Change

1. Purpose
    NASDAQ is proposing to modify NASDAQ Rule 7014 to effect the
restriction of NBBO Setter Incentives exclusively to Qualified Market
Makers (``QMMs''). In doing so, the Exchange is proposing to
incorporate the relevant language from NASDAQ Rule 7014 relating to
NBBO Setter Incentives and QMMs (i.e., NASDAQ Rule 7018(g)(3) into the
section relating to QMMs generally (i.e., NASDAQ Rule 7014(e)(1)). The
Exchange is also proposing to modify the rules governing fees assessed
for orders executed in the NASDAQ Opening Cross and, in particular, to
modify the criteria in which executions will be deemed fee liable.
QMM and NBBO Setter Incentive Programs
    A QMM is a member that makes a significant contribution to market
quality by providing liquidity at the NBBO in a large number of stocks
for a significant portion of the day. In addition, the member must
avoid imposing the burdens on NASDAQ and its market participants that
may be associated with excessive rates of entry of orders away from the
inside and/or order cancellation. The designation reflects the QMM's
commitment to provide meaningful and consistent support to market
quality and price discovery by extensive quoting at the NBBO in a large
number of securities. In return for its contributions, certain
financial benefits are provided to a QMM with respect to a particular
MPID (a ``QMM MPID''), as described under NASDAQ Rule 7014(e).
    Currently, one of these benefits pertains to the credits available
under NASDAQ's NBBO Setter Incentive Program. The NBBO Setter Incentive
Program was intended to provide an incentive to members to set the NBBO
or quote at the NBBO on NASDAQ, with the expectation that the
additional competition to set the best prices on NASDAQ would improve
the quality of the market. Since the introduction of the incentives,
however, NASDAQ has not seen a substantial increase in the amount of
competition among firms setting the inside market and, as a
consequence, has not witnessed a material improvement in market quality
(e.g., as defined by quoted spreads). The outcome of the program has
been, instead, a simple increase in the average rebate firms
collectively receive for providing liquidity. A member currently
receives an NBBO Setter Incentive credit of either $0.0001 or $0.0002
per share executed in addition to regularly assessed trading rebates,
depending upon certain trading qualifications. Every member is
currently eligible to receive at least a $0.0001 credit as long as that
member executes an order that at the time of execution either sets the
NBBO or causes the NASDAQ BBO to improve to the NBBO.
    The Exchange has observed that for the vast majority of
participants these rebates do not provide meaningful incentives to
modify behavior, (i.e., participants do not quote more aggressively or
increase the frequency with which they execute orders at the NBBO). As
a consequence, NASDAQ has concluded that providing these rebates
without tying them to some additional requirement is ineffective and
will thus provide NBBO Setter rebates only to members that qualify for
the QMM Program.
    Therefore, the Exchange proposes to merge the incentives pertaining
to the QMM Program in NASDAQ Rule 7014(e) and delete the remaining
portions of NASDAQ Rule 7014(f) and

(g). The method by which the QMMs will attain the additional rebates
(the ``Additional Rebate'') in NASDAQ Rule 7014(e)(1) associated with
NBBO setting/joining activity will be unchanged. They will be available
to those orders under the QMM Program that (a) displayed a quantity of
at least one round lot at the time of execution; (b) either established
the NBBO or was the first order posted on NASDAQ that had the same
price as an order posted at another trading center with a protected
quotation that established the NBBO; and (c) were entered through a QMM
MPID. Note that these conditions are simply a carryover from the
pertinent parts of the NBBO Setter Incentive Program currently set
forth in NASDAQ Rule 7014(g)(3)(A)-(C), and that remain applicable to
the Additional Rebate and will be included in NASDAQ Rule 7014(e)(1).
    NASDAQ Rule 7014, as revised, will remain consistent with the
current rule in that the current requirement that a QMM may not receive
both an ISP credit and NBBO Setter Incentive credit but only the
greater credit of the two, will continue just in an updated form.
Specifically, NASDAQ Rule 7014(e)(1) will similarly state that if a QMM
participates in the ISP, NASDAQ will only pay the greater of any
applicable credit under the ISP or the Additional Rebate, but not both.
Additionally, Designated Retail Orders will continue to be ineligible
for NBBO Setter Rebates.
NASDAQ Opening Cross
    The Exchange is proposing three modifications to its fee structure
relating to executions in the NASDAQ Opening Cross (the ``Open''): (1)
To adjust the fee cap governing executions in the Open from $15,000 to
$20,000; (2) to make the fee cap applicable to all orders in the Open,
and not just Market-on-Open and Limit-on-Open (MOO/LOO), Good-till-
Cancelled and Immediate-or-Cancel orders; and (3) to eliminate rule
language that stipulates that only the buy/sell imbalance of MOO/LOO,
Good-till-Cancelled and Immediate-or-Cancel orders are fee liable.
    The purpose of the changes above are primarily to rationalize
pricing for Imbalance Only orders with pricing for all other executions
in the Opening Cross. Imbalance Only orders are orders that, given an
imbalance of buy and sell interest in an Opening Cross at the time its
[sic] execution, will always buy in the event of a sell imbalance and
always sell in the event of a buy imbalance. As a consequence, firms
submitting Imbalance Only orders typically act to offset ``natural''
interest in the auction by acting as counterparties for orders
specifically marked with buy or sell requirements. The Exchange has
traditionally considered such executions conceptually equivalent to
liquidity providing orders during the continuous market, since in both
instances the firm submitting such orders are providing a benefit to
the market as a whole by increasing the ability of firms to trade into
and out of positions at a given price. As such, the Exchange seeks to
encourage the use of liquidity providing orders and Imbalance Only
orders appropriately.
    To that end, NASDAQ is proposing to expand the applicability of the
fee cap currently available only to orders other than Imbalance Only
orders (i.e., Market-on-Open, Limit-on-Open (MOO/LOO), Good-till-
Cancelled and Immediate-or-Cancel orders) to Imbalance Only orders. By
making this modification, the Exchange believes it will encourage
continued use of Imbalance Only orders and rationalize pricing for
Imbalance Only orders with all other orders. NASDAQ further proposes to
increase the value of the fee cap to $20,000 from $15,000 in light of
the increased pool of orders subject to the cap.
    Finally, NASDAQ proposes to remove language that makes fee liable
only those orders that represent a net buy and sell imbalance in the
opening cross. As with the above, NASDAQ seeks to rationalize pricing
for Opening Cross executions, in particular, with the other crossing
mechanisms currently available (e.g., the Closing Cross) which do not
have such a provision. The Exchange believes that in order to
appropriately offset the costs of maintaining the technology and
infrastructure of the Opening Cross it must assess fees on all
executions that it enables. The restriction to buy sell imbalances is
both inconsistent with pricing for other mechanisms and prevents the
Exchange from appropriately funding the Opening Cross.
2. Statutory Basis
    NASDAQ believes that the proposed rule change is consistent with
the provisions of Section 6 of the Act,\3\ in general, and with
Sections 6(b)(4) and 6(b)(5) of the Act,\4\ in particular, in that it
provides for the equitable allocation of reasonable dues, fees and
other charges among members and issuers and other persons using any
facility or system which NASDAQ operates or controls, and is not
designed to permit unfair discrimination between customers, issuers,
brokers, or dealers.
---------------------------------------------------------------------------

    \3\ 15 U.S.C. 78f.
    \4\ 15 U.S.C. 78f(b)(4) and (5).
---------------------------------------------------------------------------

    The proposed changes are reflective of NASDAQ's ongoing efforts to
use pricing incentive programs to attract orders that NASDAQ believes
will improve market quality. The QMM Program is intended to encourage
members to promote price discovery and market quality by quoting at the
NBBO for a significant portion of each day in a large number of
securities, thereby benefitting NASDAQ and other investors by
committing capital to support the execution of orders.
    Generally, NASDAQ seeks to provide customers with rewards that they
deem helpful, and to eliminate those that they do not. By reframing and
refocusing the NBBO Incentive Program, NASDAQ believes it will be able
to further promote these goals by providing better targeted incentives
for market participants to achieve these goals. The proposed changes
will immediately improve the incentive to participate in the QMM
Program (by making NBBO setter/joiner credits exclusively available to
QMMs) while eliminating unsuccessful aspects of the NBBO Setter
Incentive Program.
    Specifically, the proposed changes are consistent with statutory
requirements. The proposal to replace in the QMM Program the NBBO
Setter Incentive credit of $0.0002 per share executed with the
Additional Rebate for the same amount is consistent with an equitable
allocation of fees and is not unfairly discriminatory because the
amount of the credit is in essence not being changed and it is
continuing to be offered to market participants that make significant
contributions to market quality by satisfying the QMM requirements,
thereby benefitting other NASDAQ market participants. Additionally,
NASDAQ believes that it is an equitable allocation of reasonable fees
and is not unfairly discriminatory to convert the restriction on
receiving multiple credits currently imposed on QMMs from participating
in the ISP and the NBBO Setter Incentive Program (NASDAQ will pay the
greater of any applicable credit), to now applying it to QMMs from
participating in the ISP and receiving the Additional Rebate, but not
both.
    The elimination of NASDAQ Rule 7014(g)(1) and (2) is consistent
with a fair allocation of reasonable fees and not unfairly
discriminatory since the removal of the rule language pertaining to the
incentives, as discussed above, impacts all firms equally (to the
extent that their activity would result in receiving a benefit) unless
the firm has committed to additional quoting

requirements under NASDAQ Rule 7014(e).
    The restriction of NBBO Setter Incentives to QMMs is also
consistent with a fair allocation of reasonable fees and not unfairly
discriminatory since the QMM Program remains open to all members that
satisfy the voluntary trading requirements set forth in NASDAQ Rule
7014(e).
    The modifications to the Open are consistent with a fair allocation
of reasonable fees and not unfairly discriminatory because they are
applied equally across all members with absolutely no exclusions.
Moreover, the changes bring the fee structure for the Opening Cross in
line with the fee structure for other NASDAQ crosses, which are well-
understood and accepted by the marketplace. By expanding the fee cap to
include Imbalance Only orders, NASDAQ believes its fee structure will
be more fair and equitable, in particular by providing a similar
benefit for firms that provide a service to the market by offsetting
``natural'' interest in the Opening Cross that is currently only
available to firms trading with non-Imbalance Only orders.
    Raising the fee cap from $15,000 to $20,000 is consistent with a
fair allocation of reasonable fees and not unfairly discriminatory
because it impacts only those firms that trade in the auction, and
impacts these firms equally given their usage of the Opening Cross.
    The same is true for the elimination of the language stipulating
that only the net buy and sell imbalance will be fee liable. This
change further improves fairness of the allocation of fees by removing
an arbitrary restriction on fee liability that brings fee allocation
more in line with actual usage of the Opening Cross.

B. Self-Regulatory Organization's Statement on Burden on Competition

    NASDAQ does not believe that the proposed rule changes will result
in any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act, as amended.\5\ NASDAQ notes
that it operates in a highly competitive market in which market
participants can readily favor competing venues if they deem fee levels
at a particular venue to be excessive, or rebate opportunities
available at other venues to be more favorable. In such an environment,
NASDAQ must continually adjust its fees to remain competitive with
other exchanges and with alternative trading systems that have been
exempted from compliance with the statutory standards applicable to
exchanges. Because competitors are free to modify their own fees in
response, and because market participants may readily adjust their
order routing practices, NASDAQ believes that the degree to which fee
changes in this market may impose any burden on competition is
extremely limited. In this instance, the elimination of portions of the
NBBO Setter Incentive Program and changes to the QMM Program, as well
as the proposed changes to modify the rules governing fees assessed for
orders executed in the Open reflect this.
---------------------------------------------------------------------------

    \5\ 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------

    The QMM Program is entirely voluntary, and as a consequence members
may elect to participate in other incentive programs under which they
may receive benefits for improving the market. The very fact that the
NBBO Setter Incentive credit continues in the form of the Additional
Rebate, is itself reflective of the need for exchanges to offer
significant financial incentives to attract order flow. In sum, if the
changes proposed herein, including the modifications to the fee
structure relating to executions in the Open, are unattractive to
market participants, it is likely that NASDAQ will lose market share as
a result.
    Accordingly, NASDAQ does not believe that the proposed changes will
impair the ability of members or competing order execution venues to
maintain their competitive standing in the financial markets.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    Written comments were neither solicited nor received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    The foregoing change has become effective pursuant to Section
19(b)(3)(A) of the Act,\6\ and paragraph (f)\7\ of Rule 19b-4,
thereunder. At any time within 60 days of the filing of the proposed
rule change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings to
determine whether the proposed rule should be approved or disapproved.
---------------------------------------------------------------------------

    \6\ 15 U.S.C. 78s(b)(3)(A).
    \7\ 17 CFR 240.19b-4(f).
---------------------------------------------------------------------------

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-NASDAQ-2014-026 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.

All submissions should refer to File Number SR-NASDAQ-2014-026. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549, on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of the filing also will be available
for inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-NASDAQ-2014-026, and should
be submitted on or before April 21, 2014.
---------------------------------------------------------------------------

    \8\ 17 CFR 200.30-3(a)(12).

---------------------------------------------------------------------------

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\8\
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2014-07038 Filed 3-28-14; 8:45 am]
BILLING CODE 8011-01-P


	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

EPA-R03-OAR-2007-0382, EPA-R03-OAR-2008-0113; [FRL-        ]

Approval and Promulgation of Air Quality Implementation Plans; Virginia;
Emission Reductions from Large Stationary Internal Combustion Engines
and Large Cement Kilns

AGENCY:	Environmental Protection Agency (EPA).

ACTION:	Final rule.

SUMMARY:  EPA is approving State Implementation Plan (SIP) revisions
submitted by the Virginia Department of Environmental Quality (VADEQ).
These revisions require nitrogen oxides (NOx) emission reductions from
four large stationary internal combustion (IC) engines and a large
cement kiln located in the Commonwealth of Virginia.  The intended
effect of this action is to approve permitted emission limits that
enable Virginia to meet its remaining NOx reduction obligations under
the NOx SIP Call.

EFFECTIVE DATE:  This final rule is effective on [insert date 30 days
from date of publication].

ADDRESSES:  EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2007-0382.  All documents in the docket are listed in
the www.regulations.gov website.   Although listed in the electronic
docket, some information is not publicly available, i.e., confidential
business information (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 through www.regulations.gov or in hard
copy 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.  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:  Marilyn Powers, (215) 814- 2308, or by
e-mail at<EMAIL_ADDRESS>

SUPPLEMENTARY INFORMATION:

I.	Background

On August 21, 2008 (73 FR 49373), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Virginia.  The NPR proposed
approval of NOx emission reductions from four large stationary IC
engines and a large cement kiln located in the Commonwealth.  The formal
SIP revisions were submitted by VADEQ on February 26, 2007, March 5,
2007, March 12, 2007, March 19, 2007, and August 8, 2007.  The SIP
revision for each source consists of State operating permits that
contain emission limits to ensure the Commonwealth meets its NOx budget
for these sectors as required under the NOx SIP Call.  Other specific
requirements of the State operating permits and the rationale for EPA's
proposed action are explained in the NPR and will not be restated here.
No public comments were received on the NPR.

 II. 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 ( 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 Clean Air Act is likewise unaffected by this, or any,
state audit privilege or immunity law.

III.	Final Action

EPA is approving State operating permits for four Transcontinental Gas
Pipeline Stations (Stations 165, 170, 175, and 180) and a State
operating permit for Roanoke Cement Corporation as a revision to the
Virginia SIP.  The NOx emission reductions required by the permits
address Virginia’s remaining emission reduction obligations under the
NOx SIP Call.

IV.   Statutory and Executive Order Reviews

A.   General Requirements

Under the Clean Air Act, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act 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 Clean Air Act.  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 (Public Law 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
Clean Air Act; 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 Clean Air Act, petitions for judicial
review of this action must be filed in the United States Court of
Appeals for the appropriate circuit by [Insert date 60 days from date of
publication of this document in the Federal Register].  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.  This action, pertaining to EPA approval of NOx emission
reductions from large stationary IC engines and large cement kilns in
Virginia, may not be challenged later in proceedings to enforce its
requirements.  (See section 307(b)(2).)

List of Subjects in 40 CFR part 52

Air pollution control, Environmental protection, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements.

___October 20, 2008_____	  			___________/s/____________________

Dated:                            				Donald S. Welsh,
              								Regional Administrator,

                                  					Region III.

40 CFR Part 52 is amended as follows:

PART 52 - [AMENDED]

1.  The authority citation for 40 CFR part 52 continues to read as
follows:

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

Subpart VV ( Virginia

2. In ( 52.2420, the table in paragraph (d) is amended by adding the
entry for Transcontinental Pipeline Station 165, Transcontinental
Pipeline Station 170, Transcontinental Pipeline Station 175,
Transcontinental Pipeline Station 180 and Roanoke Cement Corporation at
the end of the table to read as follows:

( 52.2420  	Identification of plan.

*   *  *   *  *

 (d) * * *

	EPA-APPROVED SOURCE-SPECIFIC REQUIREMENTS

Source Name

Permit/order or registration number

State effective date

EPA approval date

40 CFR part 52 citation

*     *     *     *     *    *     *

Transcontinental Pipeline Station 165	Registration No. 30864	1/24/07
[Insert Federal Register publication date] [Insert page number where the
document begins]

	Transcontinental Pipeline Station 170	Registration No. 30863	1/24/07
[Insert Federal Register publication date] [Insert page number where the
document begins]

	Transcontinental Pipeline Station 175	Registration No. 40789	1/30/07
[Insert Federal Register publication date] [Insert page number where the
document begins]

	Transcontinental Pipeline Station 180	Registration No. 40782	2/13/07
[Insert Federal Register publication date] [Insert page number where the
document begins]

	Roanoke Cement Corporation	Registration No. 20232	6/18/07	[Insert
Federal Register publication date] [Insert page number where the
document begins]

*    *     *     *      *

 PAGE

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