	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

	[EPA-R03-OAR-2005-VA-0011; FRL-         ]

	Approval and Promulgation of Air Quality Implementation Plans;
Commonwealth of Virginia; Control of Particulate Matter From Pulp and
Paper Mills

AGENCY:	Environmental Protection Agency (EPA).

ACTION:	Final rule.

SUMMARY:  EPA is approving a State Implementation Plan (SIP) revision
submitted by the Commonwealth of Virginia.  The revision pertains to
amendments to an existing regulation to control particulate matter from
pulp and paper mills.  EPA is approving this SIP revision in accordance
with the Clean Air Act (CAA).                

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-2005-VA-0011.  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:  LaKeshia Robertson, (215) 814-2113, or
by e-mail at   HYPERLINK "mailto:robertson.lakeshia@epa.gov" 
robertson.lakeshia@epa.gov . 

 

SUPPLEMENTARY INFORMATION: 

 

I.	Background	

On July 3, 2007 (72 FR 36404), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Virginia.  The NPR proposed
approval of Virginia’s plan to control particulate matter emissions
from pulp and paper mills (9 VAC 5, Chapter 40, Article 13, Rule 4-13). 
The formal SIP revision was submitted by the Commonwealth of Virginia on
June 21, 2005.  Other specific requirements of Virginia’s plan to
control particulate matter from pulp and paper mills and the rational
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 the amendments to an existing regulation (9 VAC 5,
Chapter 40, Article 13, Rule 4-13) submitted on June 21, 2005 as a
revision to the Virginia SIP.  

IV.   Statutory and Executive Order Reviews 

A.   General Requirements 

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action
is not a "significant regulatory action" and therefore is not subject to
review by the Office of Management and Budget.  For this reason, this
action is also not subject to Executive Order 13211, "Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use" (66 FR 28355, May 22, 2001).  This action merely approves state law
as meeting Federal requirements and imposes no additional requirements
beyond those imposed by state law.  Accordingly, the Administrator
certifies that this rule will not have a significant economic impact on
a substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.).  Because this rule approves pre-existing
requirements under state law and does not impose any additional
enforceable duty beyond that required by state law, it does not contain
any unfunded mandate or significantly or uniquely affect small
governments, as described in the Unfunded Mandates Reform Act of 1995
(Public Law 104-4).   This rule also does not have tribal implications
because it will not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes, as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000).  This action also
does not have Federalism implications because it does not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132 (64 FR 43255, August 10, 1999).  This
action merely approves a state rule implementing a Federal requirement,
and does not alter the relationship or the distribution of power and
responsibilities established in the CAA.  This rule also is not subject
to Executive Order 13045 (Protection of Children from Environmental
Health Risks and Safety Risks( (62 FR 19885, April 23, 1997), because it
approves a state rule implementing a Federal standard.

In reviewing SIP submissions, EPA(s role is to approve state choices,
provided that they meet the criteria of the CAA.  In this context, in
the absence of a prior existing requirement for the State to use
voluntary consensus standards (VCS), EPA has no authority to disapprove
a SIP submission for failure to use VCS.  It would thus be inconsistent
with applicable law for EPA, when it reviews a SIP submission, to use
VCS in place of a SIP submission that otherwise satisfies the provisions
of the CAA.  Thus, the requirements of section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do
not apply.  This rule does not impose an information collection burden
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.).

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.   EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register.  This rule is not a
(major rule( as defined by 5 U.S.C. 804(2).

C.  Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review of
this action must be filed in the United States Court of Appeals for the
appropriate circuit by [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 rule 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, approving the amendments to Virginia’s regulation to
control particulate matter from pulp and paper mills, may not be
challenged later in proceedings to enforce its requirements.  (See
section 307(b)(2).)

List of Subjects in 40 CFR part 52 

Environmental protection, Air pollution control, Particulate matter,
Reporting and recordkeeping requirements.

_________________                                                
___________/s/________________    

Dated:   October 10, 2007     				William T. Wisniewski,                
                								Acting 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 (c) is amended by revising the
entries for Article 13 (title), 5-40-1660, 5-40-1670, 5-40-1750, and
5-40-1810 to read as follows:

( 52.2420  	Identification of plan.

*	*	*	*	*	

 (c) * * * 

EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES

State citation     (9 VAC 5)	

Title/subject	

State effective date	

EPA approval date	

Explanation [former SIP citation]



*     *     *     *     *    *     *

Chapter 40	Existing Stationary Sources

*     *     *     *     *    *     *



Part II	

Emission Standards

*     *     *     *     *    *     *

Article 13  	Emission Standards From Kraft Pulp and Paper Mills (Rule
4-13)

5-40-1660	Applicability and designation of affected facilities	04/01/99
[Insert Federal Register publication date] [Insert page number where the
document begins]

	5-40-1670	Definitions 	04/01/99	[Insert Federal Register publication
date] [Insert page number where the document begins]	Added: Neutral
sulfite semichemical pulping operation, New design recovery furnace,
Pulp and paper mill, Semichemical pulping process;

Revised: Cross recovery furnace, Straight kraft recovery furnace, Total
reduced sulfur;

Removed:

Agreement

* * * * * * *

5-40-1750	Compliance	04/01/99	[Insert Federal Register publication date]
[Insert page number where the document begins]

	* * * * * * *

5-40-1810	Permits	04/01/99	[Insert Federal Register publication date]
[Insert page number where the document begins]

	*     *     *     *     *    *     *



*    *     *     *      *

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