	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:  Final rule.

SUMMARY:  EPA is approving State Implementation Plan (SIP) revisions
submitted by the Commonwealth of Virginia.  These revisions amend
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.  EPA is approving these
revisions in accordance with the requirements of the Clean Air Act
(CAA).

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-2006-0921.  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:  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  December 26, 2006 (71 FR 77353), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Virginia.  The NPR proposed
approval of amendments to 9 VAC  5 Chapter 20, Volatile Organic Compound
and Nitrogen Oxides Emissions Control Areas, (9 VAC 5-20-206), and also
proposed approval of amendments to 9 VAC-5 Chapter 40, Articles 4, 
Emission Standards for General Process Operations; Article 36, Emission
Standards for Flexographic, Packaging Rotogravure, and Publication
Rotogravure Printing Lines; Article 37, Emission Standards for Petroleum
Liquid Storage and Transfer Operations; and Article 53, Emission
Standards for Lithographic Printing Processes.  The formal SIP revisions
were submitted by the Commonwealth of Virginia on September 12, 2006,
and October 2, 2006.  

II.  Summary of SIP Revisions

The September 12, 2006 formal SIP revision consists of amendments to 9
VAC 5-20-206 of Chapter 20, Volatile Organic Compound and Nitrogen
Oxides Emission Control Areas. Specifically, this revision creates a new
VOC and NOx emissions control area (the 

Fredericksburg Area), consisting of Spotsylvania County and
Fredericksburg City, and expands the existing Richmond VOC and NOx
Emissions Control Areas to include Prince George County and Petersburg
City.  In addition this revision expands the existing Hampton Roads VOC
and NOx Emissions Control Areas to include Gloucester and Isle of Wight
Counties.  These amendments are necessary to implement VOC control and
contingency measures within the 8-hour ozone nonattainment areas and
1-hour ozone maintenance areas.

The October 2, 2006 formal SIP revision consists of amendments to 9 VAC
5 Chapter 40 that implement non-CTG and CTG VOC RACT control
requirements within those areas that are designated as VOC emissions
control areas.  While most of the Chapter 40 rules apply to sources of
VOCs in VOC emissions control areas designated in Chapter 20, 9 VAC
5-206, certain Chapter 40 rules (specifically Articles 4, 36, 37, and
53) have provisions mandating that these regulations apply only to
certain VOC and NOx emission control areas.  Article 4, Emission
Standards for General Process Operations is being amended to ensure that
VOC RACT is not required from large VOC sources in the new areas within
the expanded Richmond VOC Emissions Control Areas; Article 36, Packaging
and Publishing Rotogravure Printing, and Flexographic Printing, is being
amended to add appropriate exemptions for small facilities in 

those VOC emissions control areas that currently have no such
exemptions; and Article 37, Storage or Transfer of Petroleum Liquids, is
also 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.  Lastly, Article 53,
Lithographic Printing, is being amended to apply in all VOC emissions
control areas instead of just in the Northern Virginia and Richmond VOC
Emissions Control Areas, and is also being amended to provide
appropriate exemptions for small facilities in the newly applicable VOC
emissions control areas.  In this rulemaking, EPA is also recodifying
the lithographic printing rule (9 VAC 5-40-7800-7940, inclusive) as
Article 53 and Rule 4-53.  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.  

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. 	Final Action

EPA is approving Virginia SIP revisions submitted on September 12, and
October 2, 2006,  amending the VOC and NOx emission control areas found
in Chapter 20, and amending certain provisions found in Chapter 40 which
implement non-CTG and CTG VOC RACT control requirements within certain
areas designated as VOC emissions control areas.

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 (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
(62 FR 19885, April 23, 1997), because it approves a state rule
implementing a Federal standard.  

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 amendments to Chapter 20 and
Chapter 40 of Virginia’s regulations, 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, Nitrogen dioxide,
Ozone, Reporting and recordkeeping requirements, Volatile organic
compounds.

 _______________________ 		___________/s/_____________________

Dated: February 21, 2007      			Donald S. Welsh,                       
         								Regional Administrator,

                                  				Region III.40 CFR Part 52 is
amended as follows: 

PART 52 - [AMENDED] 

1.  The authority citation for 40 CFR part 52 continues to read as
follows: 

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

Subpart VV ( Virginia

2.  In ( 52.2420, the table in paragraph (c) is amended by:

 a. Revising the entries for 5-20-206, 5-40-300, 5-40-5060, and
5-40-5200.

  b. For Chapter 40, Part II, removing the entry for Article 45 and
replacing it with an entry for Article 53. 

( 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 20	General Provisions

*     *     *     *     *    *     *

Part II Air Quality Programs

*     *     *     *     *    *     *

5-20-206	Volatile organic compound and nitrogen oxides emissions control
areas	10/04/06	[Insert Federal Register publication date] [Insert page
number where the document begins]	Addition of new Fredericksburg Area
and expansion of Richmond and Hampton Roads Emission Control Areas

*     *     *     *     *    *     *

Chapter 40 Existing Stationary Sources 

*     *     *     *     *    *     *

Part II	Emission Standards

*     *     *     *     *    *     *

Article 4	Emission Standards for General Process Operations (Rule 4-4)

*     *     *     *     *    *     *

5-40-300	Standard for volatile organic compounds	10/04/06	[Insert
Federal Register publication date] [Insert page number where the
document begins

	*     *     *     *     *    *     *

Article 36	Flexographic, Packaging Rotogravure, and Publication
Rotogravure Printing Lines (Rule 4-36)

5-40-5060	Applicability and designation of affected facility	04/01/96

10/04/06

	[Insert Federal Register publication date] [Insert page number where
the document begins

	*     *     *     *     *    *     *

Article 37	Emission Standards for Petroleum Liquid Storage and Transfer
Operations (Rule 4-37)

5-40-5200	Applicability and designation of affected facility	04/01/96

10/04/06

	Insert Federal Register publication date] [Insert page number where the
document begins

	*     *     *     *     *    *     *

*     *     *     *     *    *     *

Article 53	Emission Standards for Lithographic Printing Processes (Rule
4-53) [Formerly Article 45]

5-40-7800	Applicability and designation of affected facility	10/04/06

	Insert Federal Register publication date] [Insert page number where the
document begins	Revised to include and exempt certain emission control
areas 

5-40-7810	Definitions of “alcohol,” “Cleaning solution,”
“fountain solution,” lithographic printing,” “printing
process”	04/01/96

10/04/06

	Insert Federal Register publication date] [Insert page number where the
document begins

	5-40-7820	Standard for Volatile Organic Compounds	04/01/96

10/04/06

	Insert Federal Register publication date] [Insert page number where the
document begins

	5-40-7840	Standard for Visible Emissions	04/01/96

10/04/06

	Insert Federal Register publication date] [Insert page number where the
document begins

	5-40-7850	Standard for Fugitive Dust Emissions	04/01/96

10/04/06

	Insert Federal Register publication date] [Insert page number where the
document begins

	5-40-7880	Compliance	10/04/06

	Insert Federal Register publication date] [Insert page number where the
document begins	Revisions to compliance dates



5-40-7890	Test Methods and Procedures	04/01/96

10/04/06

	Insert Federal Register publication date] [Insert page number where the
document begins

	5-40-7900	Monitoring	04/01/96

10/04/06

	Insert Federal Register publication date] [Insert page number where the
document begins

	5-40-7910	Notification, Records and Reporting	04/01/96

10/04/06

	Insert Federal Register publication date] [Insert page number where the
document begins

	5-40-7920	Registration	04/01/96

10/04/06

	Insert Federal Register publication date] [Insert page number where the
document begins	



5-40-7930	Facility and Control Equipment Maintenance and Malfunction
04/01/96

10/04/06

	Insert Federal Register publication date] [Insert page number where the
document begins

	5-40-7940	Permits	04/01/96

10/04/06

	Insert Federal Register publication date] [Insert page number where the
document begins

	*     *     *     *     *    *     *

	

* * * * *

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