	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

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

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.

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 [insert date 30
days from date of publication].  

ADDRESSES:  Submit your comments, identified by Docket ID Number
EPA-R03-OAR-2006-0921 by one of the following methods:

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

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 (
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 Fed. Reg. 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 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 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.

                                                                        
           /s/

___________________________           ____________________________

Dated:   December 14, 2006                      William T. Wisniewski,
Acting

                                                                
Regional Administrator,

                                                                 Region
III.

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