	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

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

Approval and Promulgation of Air Quality Implementation Plans; 

Virginia; Amendments to the Open Burning Regulation

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Proposed rule.

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 [insert date 30
days from date of publication].

ADDRESSES:  Submit your comments, identified by Docket ID Number
EPA-R03-OAR-2007-0200 by one of the following methods:

 www.regulations.gov.  Follow the on-line instructions for submitting
comments.

E-mail:    HYPERLINK "mailto:miller.linda@epa.gov"  miller.linda@epa.gov
.

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.

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 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:  Rose Quinto, (215) 814-2182, or by
e-mail at   HYPERLINK "mailto:quinto.rose@epa.gov"  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 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:  

Western Virginia Emissions Control Area:  Botetourt County, Frederick
County, Roanoke County, Salem County and Winchester County.

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.

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.

Richmond Emissions Control Area:  Charles City County, Chesterfield
County, Hanover County, Henrico County, Colonial Heights City, Hopewell
City and Richmond City.

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 (
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

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 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 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.

                                                                        
        /s/

___________________________           ____________________________

Dated:  May 31, 2007                               William T.
Wisniewski, Acting

                                                                
Regional Administrator,

                                                                 Region
III.

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