

[Federal Register: August 18, 2006 (Volume 71, Number 160)]
[Rules and Regulations]               
[Page 47742-47744]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18au06-17]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2006-0153; FRL-8211-1]

 
Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Revised Definition of ``Volatile Organic Compound''

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the Virginia Department of Environmental Quality. This 
revision amends Virginia regulations by updating the definition of 
``volatile organic compound''. This action is being taken under the 
Clean Air Act (CAA or the Act).

DATES: Effective Date: This final rule is effective on September 18, 
2006.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2006-0153. All documents in the docket are listed in 
the http://www.regulations.gov Web site. 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 http://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: Helene Drago, (215) 814-5796, or by e-
mail at drago.helene@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    On April 5, 2006 (71 FR 17050), EPA published a notice of proposed

[[Page 47743]]

rulemaking (NPR) for the Commonwealth of Virginia. The revision updated 
the definition of ``volatile organic compound'' found in Virginia 
Regulations. The NPR proposed approval of the updated definition of 
``volatile organic compound''. The formal SIP revision was submitted by 
the Virginia Department of Environmental Quality on January 12, 2006 .

II. Summary of SIP Revision

    On January 12, 2006, the Commonwealth submitted a SIP revision 
request which amends the definition of ``volatile organic compound'' 
found under 9 VAC 5-10-20. The amendment revises the definition of the 
term ``volatile organic compound'' to exclude four compounds that have 
been demonstrated to be less reactive: 1,1,1,2,2,3,3-heptafluoro-3-
methoxy-propane, 3-ethoxy -1,1,1,2,3,4,4,5,5,6,6,6-dodecafluoro-2-
(trifluoromethyl) hexane, 1,1,1,2,3,3,3-heptafluoropropane, and methyl 
formate. The definition of VOC has also been revised in order to 
partially exclude t-butyl acetate. The amendment states that the 
compound, t-butyl acetate, should be considered to be a VOC for record 
keeping, emissions reporting, photochemical dispersion modeling and 
inventory requirements that apply to VOCs and should be uniquely 
identified in emission reports, but it is not a VOC for purposes of VOC 
emission standards, emission limitations, or content requirements. This 
definition update is consistent with Federal regulations.

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.
    Other specific requirements and the rationale for EPA's proposed 
action are explained in the NPR and will not be restated here. No 
public comments were received on the NPR.

IV. Final Action

    EPA is approving the revision of the definition of ``volatile 
organic compound'' which was submitted on January 12, 2006 as a 
revision to the Virginia SIP.

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

[[Page 47744]]

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 October 17, 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 shall not postpone the effectiveness of such 
rule or action. This action to approve revisions to the Virginia SIP 
that update the definition of ``volatile organic compound'' 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, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: August 8, 2006.
Donald S. Welsh,
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 Sec.  52.2420, the table in paragraph (c) is amended by adding an 
entry for Chapter 10, Section 5-10-20 after the five existing entries 
for 5-10-20 to read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

                                 EPA-Approved Virginia Regulations and Statutes
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                                                                                                 Explanation
    State citation  (9 VAC 5)         Title/subject          State       EPA approval date       [former SIP
                                                        effective date                            citation]
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                                     Chapter 10 General Definitions [Part I]

                                                  * * * * * * *
5-10-20..........................  Terms Defined......         5/04/05  8/18/06 [Insert      Revised definition
                                                                         page number where    of ``volatile
                                                                         the document         organic
                                                                         begins].             compound''.

                                                  * * * * * * *
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[FR Doc. E6-13614 Filed 8-17-06; 8:45 am]

BILLING CODE 6560-50-P
