

[Federal Register: January 31, 2006 (Volume 71, Number 20)]
[Proposed Rules]               
[Page 5035-5037]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31ja06-21]                         


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2005-VA-0017; FRL-8026-7]

 
Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Emission Standards for Consumer Products in the Northern 
Virginia Volatile Organic Compound Emissions Control Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) 
revision submitted by the Commonwealth of Virginia. This revision 
pertains to the emission standards for consumer products sold and used 
in the Northern Virginia volatile organic compound (VOC) emissions 
control area. This action is being taken under the Clean Air Act (CAA 
or the Act).

DATES: Written comments must be received on or before March 2, 2006.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2005-VA-0017 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 

submitting comments.
    B. E-mail: morris.makeba@epa.gov.
    C. Mail: EPA-R03-OAR-2005-VA-0017, Makeba Morris, Chief, Air 
Quality Planning Branch, Mailcode 3AP21, 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.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2005-VA-0017. 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: Rose Quinto, (215) 814-2182, or by e-
mail at quinto.rose@epa.gov.

SUPPLEMENTARY INFORMATION: On October 25, 2005, the Virginia Department 
of Environmental Quality (VADEQ) submitted a formal revision to its 
State Implementation Plan (SIP). This SIP revision consists of (1) 
amendments to 9 VAC 5 Chapter 20, Part I, Administrative, 9 VAC 5-20-
21, Documents Incorporated by Reference; and (2) new regulation 9 VAC 5 
Chapter 40, Part II, Emission Standards, Article 50--Consumer Products, 
9VAC 5-40-7240 through 9 VAC 5-40-7360.

I. Background

    The standards and requirements contained in Virginia's consumers 
products rule are based on the Ozone Transport Commission (OTC) model 
rule. The OTC consumer products model rule is based on the existing 
rules developed by the California Air Resources Board, which were 
analyzed and modified by the OTC workgroup to address VOC reduction 
needs in the Ozone Transport Region (OTR). The OTR consists of 
Delaware, Maine, New Hampshire, Vermont, Massachusetts, Connecticut, 
Rhode Island, New York, New Jersey, Pennsylvania, Maryland, the 
District of Columbia, and Virginia.

II. Summary of SIP Revision

    Amendments to 9 VAC 5-20-21 incorporate by reference additional 
test methods and procedures needed for 9 VAC 5 Chapter 40, Consumer 
Products: (1) 40 CFR 59 Subpart C, National Volatile Organic Compound 
Emission Standards for Consumer Products; (2) American Society for 
Testing and Materials (ASTM) D86-01, Standard Test Method for 
Distillation of Petroleum Products at Atmospheric Pressure, 2001; (3) 
ASTM D4359-90, Standard Test Method for Determining Whether a Material 
Is a Liquid or a Solid, 2000; (4) ASTM E260-96, Standard Practice for 
Packed Column Gas Chromatography, 2001; (5) South Coast Air Quality 
Management District Rule 1174, Ignition Method Compliance Certification 
Protocol, February 28, 1991; (6) California Air Resources Board (CARB) 
Test Method 310 (including Appendices A and B), Determination of VOCs 
in Consumer Products and Reactive Organic Compounds in Aerosol Coating 
Products, July 18, 2001; (7) California Code of Regulations, Title 17, 
Division 3, Chapter 1, Subchapter 8.5, Article 1, section 94503.5, 
Article 2, sections 94509 and 94511, Article 4, sections 94540-94555, 
2003; and (8) American Furniture Manufacturer Association Joint 
Industry Fabrics Standards Committee, Woven and Knit Residential 
Upholstery Fabric Standards and Guidelines, January 2001.
    Virginia's consumer products rule (9 VAC 5 Chapter 40) applies only 
to sources in the Northern Virginia VOC emissions control area 
designated in 9 VAC 5-20-206. This rule limits VOC emissions from 
consumer products such as adhesives, adhesive removers, aerosol 
products (like cooking and dusting sprays), air freshener, 
antiperspirants and deodorants, facial toners and astringents, waxes 
and polishes (for cars and floors, etc.), tile cleaners, tar removers, 
bug sprays, rug cleaners, charcoal lighter fluid, disinfectants, 
cosmetics and soaps. The compliance date for this rule is July 1, 2005.
    Rule 9 VAC 5 Chapter 40 applies to any person who sells, supplies, 
offers for sale, or manufactures consumer products that contain VOC. 
Exempted from the rule is any consumer product

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manufactured in the Northern Virginia VOC emissions control area for 
shipment and use outside of this area. The rule does not apply to a 
manufacturer or distributor who sells, supplies, or offers for sale a 
consumer product that does not comply with the VOC standards as long as 
the manufacturer or distributor can demonstrate both that the consumer 
product is intended for shipment and use outside of the Northern 
Virginia VOC emissions control area, and that the manufacturer or 
distributor has taken reasonable prudent precautions to assure that the 
consumer product is not distributed to the Northern Virginia VOC 
emissions control area. The rule sets specific VOC content limits in 
percent VOCs by weight for consumer products with a compliance date of 
July 1, 2005. Exemptions from the VOC content limits are listed in the 
rule. The rule also contains requirements for the following consumer 
products: (1) Products requiring dilution, (2) ozone depleting 
compounds, (3) aerosol adhesives, (4) antiperspirants or deodorants, 
(5) charcoal lighter materials, and (6) floor wax strippers. 
Alternative control plans (ACP) are also provided by allowing 
responsible parties the option to voluntarily enter into separate ACP 
agreements for the consumer products mentioned above. Criteria for 
innovative products exemption and requirements for waiver requests are 
listed in the rule. In addition, the rule contains administrative 
requirements for labeling and reporting as well as test methods for 
demonstrating compliance. The test methods used to test coatings must 
be the most current approved method at the time testing is performed.

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 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. Proposed Action

    EPA's review of this material indicates that the standards and 
requirements contained in the Virginia's consumer products rule, 9 VAC 
5 Chapter 40, are consistent with the OTC model rule. EPA is proposing 
to approve the Virginia SIP revision submitted on October 25, 2005 for 
the new regulation, 9 VAC 5 Chapter 40, and the amendments to 9 VAC 5-
20-21 that incorporates by reference test methods and procedures needed 
for 9 VAC 5 Chapter 40. The implementation of this rule will result in 
the reduction of VOC emissions from consumer products in the Northern 
Virginia VOC emissions control area. EPA is soliciting public comments 
on the issues discussed in this document. These comments will be 
considered before taking final action.

V. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed 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 proposes to approve state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this proposed 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 proposes to approve 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 proposed rule

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also does 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), nor will it 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), 
because it merely proposes to approve 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 proposed rule also is not subject to Executive Order 13045 
(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. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this proposed rule, EPA has taken the necessary steps to eliminate 
drafting errors and ambiguity, minimize potential litigation, and 
provide a clear legal standard for affected conduct. EPA has complied 
with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining 
the takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order.
    This proposed rule pertaining to the emission standards for 
consumer products in the Northern Virginia VOC emissions control area, 
does not impose an information collection burden under the provisions 
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Ozone, Reporting 
and recordkeeping requirements, Volatile organic compounds.

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

    Dated: January 23, 2006.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. E6-1210 Filed 1-30-06; 8:45 am]

BILLING CODE 6560-50-P
