ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Part
52
[
EPA­
R03­
OAR­
2005­
VA­
0014;
FRL­
]
Approval
and
Promulgation
of
Air
Quality
Implementation
Plans;
Virginia;
Documents
Incorporated
by
Reference
AGENCY:
Environmental
Protection
Agency
(
EPA).

ACTION:
Direct
final
rule.

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
[
Insert
date
60
days
after
publication
in
the
Federal
Register]

without
further
notice,
unless
EPA
receives
adverse
written
comment
by
[
Insert
date
30
days
after
publication
in
the
Federal
Register].
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.
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,
2
Philadelphia,
Pennsylvania
19103.

D.
Hand
Delivery:
At
the
previously­
listed
EPA
Region
III
address.
Such
deliveries
are
only
accepted
during
the
Docket's
normal
hours
of
operation,
and
special
arrangements
should
be
made
for
deliveries
of
boxed
information.

Instructions:
Direct
your
comments
to
Docket
ID
No.
EPA­
R03­
OAR­
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
www.
regulations.
gov,
including
any
personal
information
provided,

unless
the
comment
includes
information
claimed
to
be
Confidential
Business
Information
(
CBI)

or
other
information
whose
disclosure
is
restricted
by
statute.
Do
not
submit
information
that
you
consider
to
be
CBI
or
otherwise
protected
through
www.
regulations.
gov
or
e­
mail.
The
www.
regulations.
gov
website
is
an
"
anonymous
access"
system,
which
means
EPA
will
not
know
your
identity
or
contact
information
unless
you
provide
it
in
the
body
of
your
comment.
If
you
send
an
e­
mail
comment
directly
to
EPA
without
going
through
www.
regulations.
gov,
your
email
address
will
be
automatically
captured
and
included
as
part
of
the
comment
that
is
placed
in
the
public
docket
and
made
available
on
the
Internet.
If
you
submit
an
electronic
comment,
EPA
recommends
that
you
include
your
name
and
other
contact
information
in
the
body
of
your
comment
and
with
any
disk
or
CD­
ROM
you
submit.
If
EPA
cannot
read
your
comment
due
to
technical
difficulties
and
cannot
contact
you
for
clarification,
EPA
may
not
be
able
to
consider
your
comment.
Electronic
files
should
avoid
the
use
of
special
characters,
any
form
of
encryption,

and
be
free
of
any
defects
or
viruses.
3
Docket:
All
documents
in
the
electronic
docket
are
listed
in
the
www.
regulations.
gov
index.

Although
listed
in
the
index,
some
information
is
not
publicly
available,
i.
e.,
CBI
or
other
information
whose
disclosure
is
restricted
by
statute.
Certain
other
material,
such
as
copyrighted
material,
is
not
placed
on
the
Internet
and
will
be
publicly
available
only
in
hard
copy
form.

Publicly
available
docket
materials
are
available
either
electronically
in
www.
regulations.
gov
or
in
hard
copy
during
normal
business
hours
at
the
Air
Protection
Division,
U.
S.
Environmental
Protection
Agency,
Region
III,
1650
Arch
Street,
Philadelphia,
Pennsylvania
19103.
Copies
of
the
State
submittal
are
available
at
the
Virginia
Department
of
Environmental
Quality,
629
East
Main
Street,
Richmond,
Virginia
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
4
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
5
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
6
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."
7
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
[
Insert
date
60
days
from
date
of
publication
in
the
Federal
Register]
without
further
notice
unless
EPA
receives
adverse
comment
by
[
Insert
date
30
days
from
date
of
publication
in
the
Federal
Register].
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
8
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
(
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
9
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
10
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
[
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
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.

February
22,
2006
/
s/
_________________
__________________________
Dated:
William
Early,
Acting
Regional
Administrator,
Region
III.
11
40
CFR
part
52
is
amended
as
follows:

PART
52
­
[
AMENDED]

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

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

Subpart
VV 
Virginia
2.
In
Section
52.2420,
the
tables
in
paragraphs
(
c)
and
(
e)
are
amended:

a.
In
paragraph
(
c)
by
revising
the
entries
for
Chapter
40.

b.
In
paragraph
(
e)
by
adding
entries
for
Documents
Incorporated
by
Reference
after
the
existing
entry.

The
amendments
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
IV]

*
*
*
*
*
*
*

Part
II
Emission
Standards
*
*
*
*
*
*
*

Article
5
Emission
Standards
for
Synthesized
Pharmaceutical
Products
Manufacturing
Operations
(
Rule
4­
5)
State
citation
(
9
VAC
5)
Title/
subject
State
effective
date
EPA
approval
date
Explanation
[
former
SIP
citation]

12
*
*
*
*
*
*
*

5­
40­
460
Control
Technology
Guidelines
2/
1/
02
[
Insert
Federal
Register
publication
date]
[
Insert
page
number
where
the
document
begins]

Article
21
Emission
Standards
for
Sulfuric
Acid
Production
Units
(
Rule
4­
21)

*
*
*
*
*
*
*

5­
40­
2930
Monitoring
2/
1/
02
[
Insert
Federal
Register
publication
date]
[
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
[
Insert
Federal
Register
publication
date]
[
Insert
page
number
where
the
document
begins]

*
*
*
*
*
*
*

5­
40­
5230
Control
Technology
Guidelines
2/
1/
02
[
Insert
Federal
Register
publication
date]
[
Insert
page
number
where
the
document
begins]

*
*
*
*
*
*
*

*
*
*
*
*

(
e)*
*
*
13
Name
of
nonregulatory
SIP
revision
Applicable
geographic
area
State
submittal
date
EPA
approval
date
Additional
explanation
*
*
*
*
*
*
*

Documents
Incorporated
by
Reference
(
9
VAC
5­
20­
21,
Sections
D.,
E.
(
introductory
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))
Statewide
8/
25/
05
[
Insert
Federal
Register
publication
date]
[
Insert
page
number
where
the
document
begins]
State
effective
date
is
2/
1/
00.

Documents
Incorporated
by
Reference
(
9
VAC
5­
20­
21,
Section
B.
Statewide
10/
25/
05
[
Insert
Federal
Register
publication
date]
[
Insert
page
number
where
the
document
begins]
State
effective
date
is
3/
9/
05;
approval
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.

*
*
*
*
*
*
*
