

[Federal Register: March 3, 2006 (Volume 71, Number 42)]
[Rules and Regulations]               
[Page 10838-10842]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03mr06-6]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2005-VA-0014; FRL-8039-8]

 
Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Documents Incorporated by Reference

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve revisions to the 
Virginia State Implementation Plan (SIP). The revisions consist of 
revised citations, editions, and corrected addresses to documents which 
are incorporated by reference in Virginia's SIP-approved regulations. 
EPA is approving these revisions in accordance with the requirements of 
the Clean Air Act (CAA).

DATES: This rule is effective on May 2, 2006 without further notice, 
unless EPA receives adverse written comment by April 3, 2006. If EPA 
receives such comments, it will publish a timely withdrawal of the 
direct final rule in the Federal Register and inform the public that 
the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2005-VA-0014 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 

submitting comments.
    B. E-mail: frankford.harold@epa.gov.
    C. Mail: EPA-R03-OAR-2005-VA-0014, Harold A. Frankford, Office of 
Air Programs, Mailcode 3AP20, U.S. Environmental Protection Agency, 
Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.

[[Page 10839]]

    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2005-VA-0014. EPA's policy is that all comments received will be 
included in the public docket without change, and may be made available 
online at http://www.regulations.gov, including any personal 

information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 

is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 

automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 

information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in http://www.regulations.gov
 or in hard copy during normal business hours at the 

Air Protection Division, U.S. Environmental Protection Agency, Region 
III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the 
State submittal are available at the Virginia Department of 
Environmental Quality, 629 East Main Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Harold A. Frankford, (215) 814-2108, 
or by e-mail at frankford.harold@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    On August 25, 2005 and October 25, 2005, the Commonwealth of 
Virginia submitted formal revisions to its State Implementation Plan 
(SIP). The SIP revisions consist of revised citations, editions, and 
corrected addresses to technical documents which are incorporated by 
reference in Virginia's SIP regulations.

II. Summary of SIP Revisions

A. Description of Submittals

    On August 25, 2005, Virginia submitted revised citations, editions, 
and corrected addresses to technical documents which are incorporated 
by reference in Virginia's regulations. The document citations are 
listed in Virginia Regulation 9 VAC 5-20-21. The referenced 
publications include documents such as ``Code for Motor Fuel Dispensing 
Facilities and Repair Garages,'' ``Standard for Tank Vehicles and 
Flammable and Combustible Liquids,'' and ``Flammable and Combustible 
Liquids Code'' by the National Fire Protection Association (NFPA); 
``Atmospheric Emissions from Sulfuric Acid Manufacturing Processes'' by 
the Environmental Protection Agency; and ``Test for Pour Point of 
Petroleum Oils'' by the American Society for Testing and Materials 
(ASTM). Virginia has also updated the citations, editions and addresses 
of documents prepared by EPA, ASTM, NFPA, the U.S. Government Printing 
Office (GPO), and American Petroleum Institute (API). In addition, 
Virginia has revised rules in 9 VAC 5, Chapter 40, Articles 5 
(Synthesized Pharmaceutical Products Manufacturing Operations), 21 
(Sulfuric Acid Production Units), and 37 (Petroleum Liquid Storage and 
Transfer Operations) which cross-reference the documents that are 
listed in Regulation 9 VAC 5-20-21. The submittal also contains an 
updated reference to the July 1, 2002 Code of Federal Regulations (CFR) 
which Virginia cites in its State regulations.
    On October 25, 2005, Virginia submitted an additional revision to 
the provision in 9 VAC 5-20-21.B. This revision states that any 
reference to the CFR in Virginia's SIP-approved regulations means those 
CFR provisions which are in effect as of July 1, 2004.

B. EPA Evaluation

    EPA has determined that these SIP revisions incorporate the most 
up-to-date version of technical documents that are referenced in 
Virginia's air pollution control regulations, thus ensuring the proper 
implementation of the air pollution control regulations which comprise 
the SIP. EPA's approval of the revisions to 9 VAC 5-20-21.B is for 
those provisions of the CFR which implement control programs for air 
pollutants related to the national ambient air quality standards 
(NAAQS) and regional haze.

III. General Information Pertaining to SIP Submittals From the 
Commonwealth of Virginia

    In 1995, Virginia adopted legislation that provides, subject to 
certain conditions, for an environmental assessment (audit) 
``privilege'' for voluntary compliance evaluations performed by a 
regulated entity. The legislation further addresses the relative burden 
of proof for parties either asserting the privilege or seeking 
disclosure of documents for which the privilege is claimed. Virginia's 
legislation also provides, subject to certain conditions, for a penalty 
waiver for violations of environmental laws when a regulated entity 
discovers such violations pursuant to a voluntary compliance evaluation 
and voluntarily discloses such violations to the Commonwealth and takes 
prompt and appropriate measures to remedy the violations. Virginia's 
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and 
information about the content of those documents that are the product 
of a voluntary environmental assessment. The Privilege Law does not 
extend to documents or information (1) that are generated or developed 
before the commencement of a voluntary environmental assessment; (2) 
that are prepared independently of the assessment process; (3) that 
demonstrate a clear, imminent and substantial danger to the public 
health or environment; or (4) that are required by law.
    On January 12, 1998, the Commonwealth of Virginia Office of the 
Attorney General provided a legal opinion that states that the 
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege 
to documents and information ``required by law,'' including documents 
and information ``required by Federal law to maintain program 
delegation, authorization or approval,'' since Virginia must ``enforce 
Federally authorized environmental programs in a manner that is no less 
stringent than their Federal counterparts. * * *'' The opinion 
concludes that ``[r]egarding Sec.  10.1-1198, therefore, documents or 
other information needed for civil or criminal enforcement under one of 
these programs could not be privileged

[[Page 10840]]

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 Clean Air Act, including, for example, sections 113, 167, 205, 211 
or 213, to enforce the requirements or prohibitions of the state plan, 
independently of any state enforcement effort. In addition, citizen 
enforcement under section 304 of the Clean Air Act is likewise 
unaffected by this, or any, state audit privilege or immunity law.

IV. Final Action

    EPA is approving revisions to the Virginia SIP submitted by the 
Commonwealth of Virginia on August 25, 2005 and October 25, 2005. These 
revisions consist of revised citations, editions, and corrected 
addresses to documents that are incorporated by reference in Virginia's 
SIP-approved regulations. EPA is publishing this rule without prior 
proposal because the Agency views this as a noncontroversial amendment 
and anticipates no adverse comment. However, in the ``Proposed Rules'' 
section of today's Federal Register, EPA is publishing a separate 
document that will serve as the proposal to approve the SIP revision if 
adverse comments are filed. This rule will be effective on May 2, 2006 
without further notice unless EPA receives adverse comment by April 3, 
2006. If EPA receives adverse comment, EPA will publish a timely 
withdrawal in the Federal Register informing the public that the rule 
will not take effect. EPA will address all public comments in a 
subsequent final rule based on the proposed rule. EPA will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time. Please note that if 
EPA receives adverse comment on an amendment, paragraph, or section of 
this rule and if that provision may be severed from the remainder of 
the rule, EPA may adopt as final those provisions of the rule that are 
not the subject of an adverse comment.

V. 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 (Pub. L. 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 Clean Air Act. 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 is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. 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 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 May 2, 2006. 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

[[Page 10841]]

shall not postpone the effectiveness of such rule or action. This 
action approving the revisions to Virginia rule 9 VAC 5-20-21 that 
update the technical documents and CFR provisions which are 
incorporated by reference 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, Nitrogen dioxide, 
Ozone, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Dated: February 22, 2006.
William Early,
Acting Regional Administrator, Region III.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart VV--Virginia

0
2. In Section 52.2420, the tables in paragraphs (c) and (e) are 
amended:
0
a. In paragraph (c) by revising the entries for State citations 5-40-
460, 5-40-2930, 5-40-5210, and 5-40-5230 for Chapter 40.
0
b. In paragraph (e) by adding entries for Documents Incorporated by 
Reference after the existing entries.

0
The amendments read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

                                 EPA-Approved Virginia Regulations and Statutes
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                                                             State                           Explanation [former
     State citation (9 VAC 5)         Title/subject     effective date   EPA approval date      SIP  citation]
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                                                  * * * * * * *
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                                Chapter 40 Existing Stationary Sources [Part IV]
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                                                  * * * * * * *
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                                           Part II Emission Standards
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
    Article 5 Emission Standards for Synthesized Pharmaceutical Products Manufacturing Operations (Rule 4-5)
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
5-40-460.........................  Control Technology           2/1/02  3/3/06 [Insert page  ...................
                                    Guidelines.                          number where the
                                                                         document begins].
----------------------------------------------------------------------------------------------------------------
                  Article 21 Emission Standards for Sulfuric Acid Production Units (Rule 4-21)
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
5-40-2930........................  Monitoring.........          2/1/02  3/3/06 [Insert page  ...................
                                                                         number where the
                                                                         document begins].
----------------------------------------------------------------------------------------------------------------
         Article 37 Emission Standards for Petroleum Liquid Storage and Transfer Operations (Rule 4-37)
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
5-40-5210........................  Definitions........          2/1/02  3/3/06 [Insert page  ...................
                                                                         number where the
                                                                         document begins].
5-40-5230........................  Control Technology           2/1/02  3/3/06 [Insert page  ...................
                                    Guidelines.                          number where the
                                                                         document begins].

                                                  * * * * * * *
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* * * * *
    (e) * * *

[[Page 10842]]




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    Name of non-regulatory SIP          Applicable           State                                Additional
             revision                geographic area    submittal date   EPA approval date       explanation
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                                                  * * * * * * *
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Documents Incorporated by          Statewide..........         8/25/05  3/3/06 [Insert page  State effective
 Reference (9 VAC 5-20-21,                                               number where the     date is 2/1/00.
 Sections D., E. (introductory                                           document begins].
 sentence), E.2 (all paragraphs),
 E.3.b, E.4.a.(1) and (2),
 E.4.b., E.5. (all paragraphs),
 and E.7. (all paragraphs)).
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Documents Incorporated by          Statewide..........        10/25/05  3/3/06 [Insert page   State effective is
 Reference (9 VAC 5-20-21,                                               number where the     3/9/05; approval
 Section B).                                                             document begins].    is for those
                                                                                              provisions of the
                                                                                              CFR which
                                                                                              implement control
                                                                                              programs for air
                                                                                              pollutants related
                                                                                              to the national
                                                                                              ambient air
                                                                                              quality standards
                                                                                              (NAAQS) and
                                                                                              regional haze.
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                                                  * * * * * * *
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[FR Doc. 06-1943 Filed 3-2-06; 8:45 am]

BILLING CODE 6560-50-P
