

[Federal Register: December 26, 2006 (Volume 71, Number 247)]
[Proposed Rules]               
[Page 77353-77356]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26de06-16]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA R03-OAR-2006-0921; FRL-8261-2]

 
Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Amendments to VOC and NOX Emission Control Areas 
and VOC Control Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve State Implementation Plan (SIP) 
revisions submitted by the Commonwealth of Virginia. These revisions 
amend the existing volatile organic compound (VOC) and nitrogen oxide 
(NOX) emissions control areas, and amend certain VOC and 
NOX regulations in order to manage the extension of 
applicability of these provisions to the amended VOC and NOX 
emission control areas. This action is being taken under the Clean Air 
Act (CAA or the Act).

DATES: Written comments must be received on or before January 25, 2007.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2006-0921 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-2006-0921, 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-
2006-0921. 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 at http://www.regulations.gov or 

in hard copy during normal business hours at the Air Protection 
Division, U.S. Environmental Protection Agency,

[[Page 77354]]

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: Ellen Wentworth, (215) 814-2034, or by 
e-mail at wentworth.ellen@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    On July 18, 1997, EPA promulgated a revised 8-hour ozone standard 
of 0.08 parts per million (ppm). This new standard is more stringent 
than the previous 1-hour standard. On April 30, 2004, (69 FR 23858), 
the EPA designated and classified areas for the 8-hour ozone national 
ambient air quality standard (NAAQS). For most areas, these 
designations became effective June 15, 2004. EPA designated, as 
nonattainment, any area violating the 8-hour ozone NAAQS based on the 
air quality for the three years of 2001-2003. These were the most 
recent three years of data at the time EPA designated 8-hour areas. The 
8-hour standard replaced the 1-hour standard on June 15, 2005 (69 FR 
23996).
    Currently, Virginia's Chapter 40 of the Regulations for the Control 
and Abatement of Air Pollution contains a number of rules used to 
enforce control measures designed to attain and maintain the ozone air 
quality standard. The geographic applicability of these rules is 
defined by establishing VOC and NOX emissions control areas 
in a list located in 9 VAC 5-20-206. The Commonwealth of Virginia's 
regulations establish VOC and NOX emissions control areas to 
provide the legal mechanism to define the geographic areas in which 
Virginia implements control measures to attain and maintain the air 
quality standards for ozone. The emissions control areas may or may not 
coincide with the nonattainment areas found in 9 VAC 5-20-204, 
depending upon the necessity of the planning requirements. In order to 
implement control measures to attain and maintain the air quality 
standards for ozone, Virginia has proposed to expand the VOC and 
NOX emissions control areas (9 VAC 5-20-206) and extend the 
geographic applicability of the VOC and NOX regulatory rules 
in Chapter 40 of the regulations into the new 8-hour nonattainment 
areas. Accordingly, 9 VAC 5-20-206 is being amended to include those 
counties and cities in the corresponding new 8-hour ozone nonattainment 
areas that were not previously listed in 9 VAC 5-20-206. Most of these 
Chapter 40 regulations will automatically apply within all of the new 
VOC emissions control areas. Others have provisions that apply only to 
certain existing VOC and NOX emission control areas. Each of 
these rules is being amended individually in order to manage the 
extension of applicability of these provisions to the additional VOC 
and NOX emission control areas with coherence and 
consistency.

II. Summary of SIP Revisions

    On September 12, 2006, the Commonwealth of Virginia submitted a 
revision to its SIP. This revision amends 9 VAC 5-20-206 of Chapter 20 
of Virginia's Regulations for the Control and Abatement of Air 
Pollution to establish a new Fredericksburg NOX and VOC 
Emissions Control Area, consisting of Spotsylvania County, and 
Fredericksburg City; to expand the Richmond VOC and NOX 
Emissions Control Area to include Prince George County and Petersburg 
City; and to expand the Hampton Roads VOC and NOX Emissions 
Control Area to include Gloucester County and Isle of Wight County. 
These amendments are necessary to include those counties and cities in 
the corresponding new 8-hour ozone nonattainment areas that were not 
previously listed in 9 VAC 5-20-206, and to implement VOC control and 
contingency measures within the 8-hour ozone nonattainment areas and 1-
hour ozone maintenance areas.
    On October 2, 2006, the Commonwealth of Virginia submitted a 
revision to its SIP. This revision consists of amendments to 
regulations found in Chapter 40 of Virginia's Regulations for the 
Control and Abatement of Air Pollution that implement non-CTG and CTG 
VOC reasonably available control technology (RACT) control requirements 
within those areas that are designated as VOC emissions control areas 
in 9 VAC 5-20-206.
    As stated previously, most of the Chapter 40 rules will 
automatically be extended into the new 8-hour nonattainment areas 
automatically when the VOC emissions control areas in 9 VAC 5-20-206 
are amended. Some Chapter 40 rules have provisions that apply only to 
certain existing VOC and NOX emissions control areas. In 
this revision, Articles 4, 36, 37, and 53 are being amended 
individually in order to manage the extension of applicability of these 
provisions to the additional VOC and NOX emission control 
areas.
    Article 4, Emission Standards for General Process Operations, is 
being amended to ensure that VOC RACT is not automatically required 
from large VOC sources in the new areas that were included in the 
Richmond VOC Emissions Control Area (County of Prince George and City 
of Petersburg). Article 4 currently applies in the Northern Virginia 
and Richmond Emissions Control Areas designated in 9 VAC 5-20-206. With 
the addition of Prince George County and Petersburg to the Richmond VOC 
Emissions Control Area, VOC RACT would normally automatically apply to 
all large existing sources in the County of Prince George and the City 
of Petersburg. However, the Richmond 8-hour ozone nonattainment area 
was reclassified from a moderate 8-hour ozone nonattainment area to a 
marginal 8-hour ozone nonattainment area (69 FR 56697, September 22, 
2004). EPA only requires existing sources in nonattainment areas that 
are classified as moderate and above to implement VOC RACT.
    Article 36, Packaging and Publishing Rotogravure Printing, and 
Flexographic Printing, is being amended to provide exemptions for small 
facilities in all VOC emissions control areas, other than the Northern 
Virginia VOC Emissions Control Area, whose potential to emit is less 
than 100 tons per year.
    Article 37, Storage or Transfer of Petroleum Liquids, is being 
amended to ensure that Stage II Vapor Recovery is not required at 
gasoline dispensing stations in the new areas within the expanded 
Richmond VOC Emissions Control Area--Petersburg City, and Prince George 
County, since these areas were not part of the 1-hour ozone moderate 
nonattainment area. This revision also removes applicability 
redundancies resulting from this action and a previous amendment that 
added the Western Virginia VOC Emissions Control Area (Botetourt 
County, Frederick County, and Winchester City, 70 FR 21625, April 27, 
2005).
    Article 53, Emission Standards for Lithographic Printing Processes, 
is being amended to apply in all VOC emissions control areas. The 
amendment also exempts from the provisions of this Article, all 
facilities in all VOC emissions control areas, other than the Northern 
Virginia VOC Emissions Control Area, whose potential to emit is less 
than 100 tons per year of VOCs. When EPA approved the lithographic 
printing processes regulation into the Virginia SIP (62 FR 11334, March 
12, 1997), it was codified under Article 45. In this action, EPA is 
also recodifying the lithographic printing processes regulation (9 VAC 
5-40-7800-7940, inclusive) from Article 45 to Article 53 to be 
consistent with Virginia's regulations.

[[Page 77355]]

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 is proposing to approve the Commonwealth of Virginia's SIP 
revisions amending existing regulations pertaining to emissions control 
areas, and the accompanying rule regulations, which were submitted on 
September 12 and October 2, 2006. 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 (Pub. L. 104-4). This proposed rule 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

[[Page 77356]]

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 amendments to existing regulation 
provisions concerning Virginia's emissions control areas, and 
accompanying regulatory changes, 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, Nitrogen dioxide, 
Ozone, Reporting and recordkeeping requirements, Volatile organic 
compounds.

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

    Dated: December 14, 2006
William T. Wisniewski,
Acting Regional Administrator, Region III.
 [FR Doc. E6-22058 Filed 12-22-06; 8:45 am]

BILLING CODE 6560-50-P
