	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:  Final rule.

SUMMARY:  EPA is approving 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.  EPA is
approving this SIP revision in accordance with 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-2007-0200.  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 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 June 7, 2007 (72 FR 31493), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Virginia.  The NPR proposed
approval of the amendments to Virginia’s open burning regulation (9
VAC 5, Chapter 40, Part II, Article 40, Sections 5-40-5600 through
5-40-5630).  The formal SIP revision was submitted by the Virginia
Department of Environmental Quality (VADEQ) on February 5, 2007.  The
provisions of Virginia’s open burning regulation and the rationale for
EPA's proposed action are explained in the NPR and will not be restated
here.  On July 9, 2007, EPA received comments from VADEQ on the June 7,
2007 NPR.  The comments state that they are not to be considered adverse
to EPA’s proposed action; rather, VADEQ requests that EPA revise the
preamble to the rule where the preamble is arguably inconsistent with
Virginia’s submittal.  A summary of those comments and EPA’s
responses are provided in Section II of this document.

II.  Summary of Public Comments and EPA Responses

Comment:  The commenter requests to correct the following under the
“Summary of SIP Revision,” the list of volatile organic compound
(VOC) emission control areas:

Western Virginia Emissions Control Area:  Add “Roanoke City;” change
“Salem County” to “Salem City;” and change “Winchester
County” to “Winchester City.”

Hampton Roads Emissions Control Area:  Add “Gloucester County” and
“Isle of Wight County” and change “Suffolk County” to Suffolk
City.”

Richmond Emissions Control Area:  Add “Prince George County” and
“Petersburg City.”

Response:  EPA acknowledges that the June 7, 2007 proposal inadvertently
omitted the above- referenced geographic areas, which were included in
Virginia’s submittal.  

Comment:   The commenter requests that the seasonal restrictions in 9
VAC 5-40-5630(A)(8) and 9 VAC 5-40-5630(A)(10) as applying in the County
of Gloucester and the County of Isle of Wight not become part of
Virginia SIP until 2009.  

Response:  The effective date of this approval is 2009; therefore this
comment is moot.  

Comment:  The commenter requests to remove the terms “landfill,”
“local landfill” and “salvage operation” from the list of
definitions affected by this SIP approval, since no changes were made to
these definitions.  The commenter requests to add the term
“junkyard” in the list of definitions, since a change was made to
this definition.

Response:  EPA agrees that Virginia’s submittal did not change the
definitions of the terms “landfill,” “local landfill” and
“salvage operation,” which were inadvertently included in the June
7, 2007 notice as having been changed.  EPA also agrees that Virginia
added the term “junkyard” although this term was inadvertently
omitted from the list of changes in the SIP Revision Summary of the
notice.

Comment:  The commenter requests to replace the following statement
contained in the preamble:  “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.”  

The commenter suggests replacing that statement with:  “The
destruction of rubber tires, asphaltic materials, crankcase oil,
impregnated wood or other rubber or petroleum based materials is
prohibited by open burning or the use of special incineration devices
except when conducting bona fide fire fighting instruction at
firefighting training schools having permanent facilities.  Open burning
or the use of special incinerator devices is also prohibited for the
destruction of hazardous waste or containers for such materials as well
as for salvage operations or for the destruction of
commercial/industrial waste.”

Response:  EPA agrees that VADEQ’s suggested replacement statement is
an accurate synopsis of the rule, and should replace EPA’s statement
from the rule proposal.



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 CAA,
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 CAA is likewise unaffected by this, or any, state
audit privilege or immunity law.

III.  Final Action

EPA is approving the amendments to the open burning regulation (9 VAC 5,
Chapter 40, Part II, Article 40, Sections 5-40-5600 through 5-40-5630)
as a revision to the Virginia SIP submitted on February 5, 2007.  

IV.   Statutory and Executive Order Reviews 

A.   General Requirements 

Under the CAA, the Administrator is required to approve a SIP submission
that complies with the provisions of the CAA and applicable Federal
regulations.  42 U.S.C. 7410(k); 40 CFR 52.02(a).  Thus, in reviewing
SIP submissions, EPA’s role is to approve state choices, provided that
they meet the criteria of the CAA.  Accordingly, this action merely
approves state law as meeting Federal requirements and does not impose
additional requirements beyond those imposed by state law.  For that
reason, this action:

is not a “significant regulatory action” subject to review by the
Office of Management and Budget under Executive Order 12866 (58 FR
51735, October 4, 1993);  

does not impose an information collection burden under the provisions of
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

is certified as not having a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.);  

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);

does not have Federalism implications as specified in Executive Order
13132 (64 FR 43255, August 10, 1999);

is not an economically significant regulatory action based on health or
safety risks subject to Executive Order 13045 (62 FR 19885, April 23,
1997); 

is not a significant regulatory action subject to Executive Order 13211
(66 FR 28355, May 22, 2001); 

is not subject to requirements of Section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note)
because application of those requirements would be inconsistent with the
CAA; and 

does not provide EPA with the discretionary authority to address, as
appropriate, disproportionate human health or environmental effects,
using practicable and legally permissible methods, under Executive Order
12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP
is not approved to apply in Indian country located in the state, and EPA
notes that it will not impose substantial direct costs on tribal
governments or preempt tribal law.

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 action 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.  A major rule cannot
take effect until 60 days after it is published in the Federal Register.
 This action 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 CAA, 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 action 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, approving the amendments of Virginia’s open burning
regulation, 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, Incorporation by
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.

                                                                        
 

_January 22, 2009                                            /s/_       
                              _ 

Dated:                            			 William T. Wisniewski,            
                    							 Acting 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 revising the
entries for 9 VAC 5, Chapter 40, Part II, Article 40, Sections 5-40-5600
through 5-40-5630 to read as follows:

( 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 40	Existing Stationary Sources

*     *     *     *     *    *     *

Part II	Emission Standards

*     *     *     *     *    *     *

Article 40  	Open Burning (Rule 4-40)

5-40-5600	Applicability	10/18/06	[Insert Federal Register publication
date] [Insert page number where the document begins]	Provisions of
Article 40 expanded to new localities in the emissions control areas.

5-40-5610	Definitions 	10/18/06	[Insert Federal Register publication
date] [Insert page number where the document begins]	Terms added: 
“Air curtain incinerator,” “Clean lumber,” “Wood waste,” and
“Yard waste.”

Terms revised:  “Clean burning waste,” “Clean wood,”
“Commercial waste,” “Construction waste,” “Debris waste,”
“Demolition waste,” “Garbage,” “Hazardous waste,”
“Household waste,” “Industrial waste,” “Junkyard,” “Open
burning,” “Open pit incinerator,” “Refuse,” “Sanitary
landfill,” and “Special incineration device.”

5-40-5620	Open burning prohibitions	10/18/06	[Insert Federal Register
publication date] [Insert page number where the document begins]

	5-40-5630	Permissible open burning	10/18/06	[Insert Federal Register
publication date] [Insert page number where the document begins]

	*     *     *     *     *    *     *



 *    *     *     *      *

 PAGE  10 

