	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

	[EPA-R03-OAR-2007-0287; FRL-        ] 

Approval and Promulgation of Air Quality Implementation Plans; Virginia;


Northern Virginia Reasonably Available Control Technology Under the
8-Hour Ozone National Ambient Air Quality Standard

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 consists
of a demonstration that the Virginia portion (Cities of Alexandria,
Fairfax, Falls Church, Manassas, and Manassas Park; Counties of
Arlington, Fairfax, Loudoun, and Prince William) of the
Washington-DC-MD-VA 8-Hour Ozone Nonattainment Area meets the
requirements of reasonably available control technology (RACT) for
oxides of nitrogen (NOx) and volatile organic compounds (VOCs) set forth
by the Clean Air Act (CAA).  These requirements are based on: 
Certification that previously adopted RACT controls in Virginia’s SIP
that were approved by EPA under the 1-hour ozone national ambient air
quality standard (NAAQS) are based on the currently available
technically and economically feasible controls, and that they continue
to represent RACT for the 8-hour implementation purposes; a negative
declaration demonstrating that no facilities exist in the Virginia
portion of the Washington-DC-MD-VA area for certain control technology
guideline (CTG) categories; and a new RACT determination for a specific
source.  This action is being taken under the 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-2007-0287.  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:  Gregory Becoat, (215) 814-2036, or by
e-mail at becoat.gregory@epa.gov.

SUPPLEMENTARY INFORMATION:  

I.  Background	

On March 19, 2009 (74 FR 11702), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Virginia.  The NPR proposed
approval of the requirements of RACT under the 8-hour ozone NAAQS.  EPA
received no comments on the proposal to approve Virginia’s SIP
revision.  The formal SIP revision was submitted by the Commonwealth of
Virginia on October 23, 2006.  

II.  Summary of SIP Revision

Virginia’s SIP revision contains the requirements of RACT set forth by
the CAA under the 8-hour ozone NAAQS.  Virginia’s SIP revision is
consistent with the process in the Phase 2 Rule preamble, and satisfies
the requirements of RACT set forth by the CAA under the 8-hour ozone
NAAQS.  Virginia’s SIP revision satisfies the 8-hour RACT requirements
through (1) certification that previously adopted RACT controls in
Virginia’s SIP that were approved by EPA under the 1-hour ozone NAAQS
are based on the currently available technically and economically
feasible controls, and continues to represent RACT for the 8-hour
implementation purposes; (2) a negative declaration demonstrating that
no facilities exist in the Virginia portion of the Washington-DC-MD-VA
area for the applicable CTG categories; and (3) a new RACT determination
for a single source.  Other requirements of Virginia’s 8-hour RACT 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 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.

IV.	Final Action

EPA is approving the 8-hour RACT as a revision to the Commonwealth of
Virginia’s SIP.  Virginia’s SIP revision contains the requirements
of RACT set forth by the CAA under the 8-hour ozone NAAQS.  This SIP
revision was submitted on October 23, 2006.

V.   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, pertaining to the Commonwealth of Virginia’s RACT
provisions under the 8-hour ozone NAAQS, 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.

_June 5, 2009______                                                 
__________/s/__________________

Dated:                             		   		William C. Early,	

                                                                 	
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 Section 52.2420, the table in paragraph (e) is amended by adding
the entry for RACT under the 8-hour ozone NAAQS- Virginia portion of the
Washington-DC-MD-VA area at the end of the table to read as follows: 

( 52.2420  		Identification of plan.

*		*		*		*		*

(e)* * *

Name of non-regulatory SIP revision	Applicable geographic area	State
submittal date	EPA approval date	Additional 

explanation

*                    *                      *                   *       
           *                 *                    *

RACT under the 8-Hour ozone NAAQS	Virginia portion of the
Washington-DC-MD-VA area 	10/23/06	[Insert Federal Register] publication
date] [Insert page number where the document begins]	





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