	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

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

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:  Final rule.									

SUMMARY:  EPA is approving 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.  EPA is approving this SIP revision in accordance with the Clean
Air Act (CAA or Act).

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-0017.  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:  Rose Quinto, (215) 814-2182, or by
e-mail at quinto.rose@epa.gov.

SUPPLEMENTARY INFORMATION:

I.  Background

On January 31, 2006 (71 FR 5035), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Virginia.  The NPR proposed
approval of a new rule, 9 VAC 5 Chapter 40, Consumer Products (9 VAC
5-40-7240 through 9 VAC 5-40-7360); and the amendments to 

9 VAC 5-20-21 that incorporate by reference test methods and procedures
needed for 9 VAC 5 Chapter 40.  The formal SIP revision was submitted by
the Virginia Department of Environmental Quality (VADEQ) on October 25,
2005.

II.  Summary of SIP Revision

The Virginia 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.  The rule applies to a person who sells,
supplies, offers for sale, or manufactures consumer products on or after
July 1, 2005.  Also included in the rule are definitions, the VOC
content limits, standards and exemptions, innovative products,
requirements for waiver requests, administrative requirements for
labeling and reporting, test methods for demonstrating compliance,
compliance schedules, an alternative control plan, monitoring, and
reporting and recordkeeping requirements.  

Amendments to 9 VAC 5-20-21 incorporate by reference additional test
methods and procedures needed for 9 VAC 5 Chapter 40.

Other specific requirements of 9 VAC 5 Chapter 40, amendments to 9 VAC
5-20-21, and the rationale for EPA's proposed action are explained in
the NPR and will not be restated here.  On February 2, 2006, EPA
received a single comment on its January 31, 2006 NPR.  A summary of the
comment submitted and EPA(s response is provided in Section III of this
document.

III.  Summary of Public Comments and EPA Responses

Comment:  A commenter pointed out that one of its test methods
referenced in the state regulation had been revised and renumbered.

Response:  The commenter merely points out that one test method that the
rule incorporates has been revised and renumbered.  The commenter does
not request that EPA disapprove the rule, nor allege that the current
regulation incorporating the earlier version of the test method is in
any way adequate.  Therefore, EPA concludes that the information
provided by the commenter does not change EPA(s proposal to approve the
SIP revision.

IV.  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 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.

V.  Final Action

EPA is approving the Virginia SIP revision submitted on October 25, 2005
for the new regulation, 9 VAC 5 Chapter 40 - Consumer Products, and the
amendments to 9 VAC 5-20-21 that incorporates by reference test methods
and procedures needed for 9 VAC 5 Chapter 40.

VI.  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 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 [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 pertaining to the Virginia consumer products rule, 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, Ozone, Reporting and
recordkeeping requirements, Volatile organic compounds.

_____________					____________/s/_______________    

Dated: January 18, 2007        				Donald S. Welsh,                     
           								Regional Administrator,

                                  					Region III.

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. 7401et seq.

Subpart VV – Virginia

2.  In Section 52.2420, the table in paragraph (c) is amended by adding
an entry for Chapter 40, Part II, Article 50.  The table in paragraph
(e) is amended by adding an entry for (Documents Incorporated by
Reference( at the end of the table.  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 II	

Emission Standards



           *             *              *             *               * 
             *              



ARTICLE 50	

CONSUMER PRODUCTS (Rule 4-50)



5-40-7240	

Applicability	

3/9/05	

[Insert Federal Register publication date] 

[Insert page number where the document begins]	





5-40-7250	

Exemptions	

3/9/05	

[Insert Federal Register publication date] 

[Insert page number where the document begins]	





5-40-7260	

Definitions	

3/9/05	

[Insert Federal Register publication date] 

[Insert page number where the document begins]	





5-40-7270	

Standard for volatile organic compounds	

3/9/05	

[Insert Federal Register publication date] 

[Insert page number where the document begins]	





5-40-7280	

Alternative control plan (ACP) for consumer products	

3/9/05	

[Insert Federal Register publication date] 

[Insert page number where the document begins]	





5-40-7290	

Innovative Products	

3/9/05	

[Insert Federal Register publication date] 

[Insert page number where the document begins]	



5-40-7300	

Administrative requirements	

3/9/05	

[Insert Federal Register publication date] 

[Insert page number where the document begins]	





5-40-7320	

Compliance	

3/9/05	

[Insert Federal Register publication date] 

[Insert page number where the document begins]	





5-40-7330	

Compliance schedules	

3/9/05	

[Insert Federal Register publication date] 

[Insert page number where the document begins]	





5-40-7340	

Test methods and procedures	

3/9/05	

[Insert Federal Register publication date] 

[Insert page number where the document begins]	





5-40-7350	

Monitoring	

3/9/05	

[Insert Federal Register publication date] 

[Insert page number where the document begins]	





5-40-7360	

Notification, records and reporting	

3/9/05	

[Insert Federal Register publication date] 

[Insert page number where the document begins]	



           *             *              *             *               * 
             *              *



*	*	*	*	*

(e)***



Name of non-regulatory SIP revision	

Applicable geographic area	

State submittal date	

EPA approval date	

Additional 

Explanation



*             *              *             *               *            
  *              *



Documents Incorporated by Reference

	

Northern Virginia VOC Emissions Control Area designated in 

9 VAC 5-20-206	

10/25/05	

[Insert Federal Register publication date] 

[Insert page number where the document begins]	

State effective 

date is 3/9/05

9 VAC 5-20-21, Sections E.1.a.(16)., E.4.a.(18) through a.(20), E.6.a,
E.11.a.(3), E.12.a.(5) through a.(8), E.14.a. and E.14.b.



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