

[Federal Register: June 7, 2007 (Volume 72, Number 109)]
[Proposed Rules]
[Page 31493-31495]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07jn07-28]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2007-0200; FRL-8323-1]


Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Amendments to the Open Burning Regulation

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP)
revision submitted by the Commonwealth of Virginia. This SIP revision
pertains to the amendments of Virginia's open burning regulation. This
action is being taken under the Clean Air Act (CAA or the Act).

DATES: Written comments must be received on or before July 9, 2007.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2007-0200 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for

submitting comments.
    B. E-mail: miller.linda@epa.gov.
    C. Mail: EPA-R03-OAR-2007-0200, Linda Miller, Acting 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-
2007-0200. 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 in http://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: Rose Quinto, (215) 814-2182, or by e-
mail at quinto.rose@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    On February 5, 2007, the Virginia Department of Environmental
Quality (VADEQ) submitted a revision to its State Implementation Plan
(SIP) for Open Burning Regulation. The SIP

[[Page 31494]]

revision consists of regulation amendments to the April 26, 1996
submittal. The SIP revision expands the geographic applicability of the
control measure to implement the open burning seasonal restrictions as
part of its plans to reduce and maintain volatile organic compound
(VOC) emissions in VOC emissions control areas in Virginia. The
amendments include: 9 VAC 5-40-5600--Applicability; 9 VAC 5-40-5610--
Definitions; 9 VAC 5-40-5620--Open Burning Prohibitions; and 9 VAC 5-
40-5630--Permissible Open Burning.

II. Summary of SIP Revision

    Virginia's Open Burning Regulation (9 VAC 5 Chapter 40) applies to
any person who permits or engages in open burning or who permits or
engages in burning using special incineration devices.
    A special incineration device is a pit incinerator, conical or
teepee burner, or any other device specifically designed to provide
combustion performance. Modifications of 9 VAC 5 Chapter 40 are made to
ensure that the regulation is consistent with the existing incinerator
regulations of the board and waste management regulations.
    The provisions of this amended regulation are applicable only in
the volatile organic emission control areas identified in 9 VAC 5-20-
206 of the Virginia Regulations during the months of May, June, July,
August and September. The volatile organic emission control areas
applicable to this regulation include:
    1. Western Virginia Emissions Control Area: Botetourt County,
Frederick County, Roanoke County, Salem County and Winchester County.
    2. Northern Virginia Emissions Control Area: Arlington County,
Fairfax County, Loudon County, Prince William County, Stafford County,
Alexandria City, Fairfax City, Falls Church City, Manassas City and
Manassas Park City.
    3. Hampton Roads Emissions Control Area: James City County, York
County, Chesapeake City, Hampton City, Newport News City, Norfolk City,
Poquoson City, Portsmouth City, Suffolk County, Virginia Beach City and
Williamsburg City.
    4. Richmond Emissions Control Area: Charles City County,
Chesterfield County, Hanover County, Henrico County, Colonial Heights
City, Hopewell City and Richmond City.
    5. Fredericksburg Emissions Control Area: Spotsylvania County and
Fredericksburg City.
    Definitions included in this SIP revision are: Air curtain
incinerator, clean burning waste, clean lumber, clean wood, commercial
waste, construction waste, debris waste, demolition waste, garbage,
hazardous waste, household waste, industrial waste, landfill, local
landfill, open burning, open pit incinerator, refuse, salvage
operation, sanitary landfill, special incineration device, wood waste,
and yard waste.
    This SIP revision provides for the control of open burning and use
of special incineration devices for destruction of rubber tires,
asphaltic materials, crankcase oil, impregnated wood or other rubber or
petroleum based materials except when conducting bona fide fire
fighting instruction at fire fighting training schools having permanent
facilities. This SIP revision also provides for the control of open
burning and use of special incineration device for the destruction of
hazardous waste or containers for such materials. In addition, this SIP
revision provides for the control of open burning and use of special
incineration device for the purpose of salvage operation or for the
destruction of commercial/industrial waste.
    Open burning or the use of special incineration devices is
permitted on-site for the destruction of clean burning waste and debris
waste resulting from property maintenance, from the development or
maintenance of roads and highways, parking areas, railroad tracks,
pipelines, power and communication lines, buildings or building areas,
sanitary landfills, or from any other clearing operations. Such
destruction is prohibited in the VOC emissions control areas (see 9 VAC
5-20-206) during May, June, July, August and September.
    Open burning or the use of special incineration devices is also
permitted for the destruction of clean burning waste and debris waste
on the site of local landfills provided that the burning does not take
place on land that has been filled and covered so as to present an
underground fire hazard due to the presence of methane gas. Such
destruction is prohibited in the VOC emissions control areas (see 9 VAC
5-20-206) during May, June, July, August and September.

III. General Information Pertaining to SIP Submittals From the
Commonwealth of Virgina

    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

[[Page 31495]]

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

    In implementing the open burning restrictions, this amended
regulation (9 VAC 5 Chapter 40) will reduce and maintain VOC emissions
in the volatile organic emission control areas identified in 9 VAC 5-
20-206 of the Virginia regulations. EPA is proposing to approve the
Virginia SIP revision for the Open Burning Regulation submitted on
February 5, 2007. 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 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. 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 the amendments of Virginia's Open
Burning Regulation, 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: May 31, 2007.
William T. Wisniewski,
Acting Regional Administrator, Region III.
[FR Doc. E7-11038 Filed 6-6-07; 8:45 am]

BILLING CODE 6560-50-P
