

[Federal Register: September 12, 2007 (Volume 72, Number 176)]
[Proposed Rules]               
[Page 52028-52031]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12se07-20]                         


[[Page 52028]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2007-0479; FRL-8466-1]

 
Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Amendments Extending the Applicability of Four Consumer and 
Commercial Product Regulations to the Fredericksburg Volatile Organic 
Compound (VOC) Emissions Control Area

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 revision 
extends the applicability of four consumer and commercial product 
regulations--Portable Fuel Container Spillage, Mobile Equipment Repair 
and Refinishing Operations, Architectural and Industrial Maintenance 
Coatings, and Consumer Products--to the Fredericksburg VOC Emissions 
Control Area. These amendments are necessary to implement VOC 
contingency measures within the Fredericksburg VOC Emissions Control 
Area. This action is being taken under the Clean Air Act.

DATES: Written comments must be received on or before October 12, 2007.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2007-0479 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 

submitting comments.
    B. E-mail: powers.marilyn@epa.gov.
    C. Mail: EPA-R03-OAR-2007-0479, Marilyn Powers, 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-
2007-0479. 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: Ellen Wentworth, (215) 814-2034 or by 
e-mail at wentworth.ellen@epa.gov.

SUPPLEMENTARY INFORMATION: On May 14, 2007, the Virginia Department of 
Environmental Quality (VADEQ) submitted a formal revision to its SIP. 
This SIP revision consists of amendments to 9 VAC 5 Chapter 20, Part I, 
Administrative, 9 VAC 5-20-21, Documents Incorporated by Reference, and 
amendments to 9 VAC 5 Chapter 40, Part II, Emission Standards, Articles 
42, 48, 49, and 50.

I. Background

    Chapter 40 of Virginia's Regulations for the Control and Abatement 
of Air Pollution contains a number of rules used to enforce control 
measures designed to attain and maintain the ozone air quality 
standard. The geographic applicability of these rules is defined by 
establishing VOC and NOX emissions control areas in a list 
located in 9 VAC 5-20-206. The Commonwealth of Virginia's regulations 
establish VOC and nitrogen oxide (NOX) emissions control 
areas to provide the legal mechanism to define the geographic areas in 
which Virginia implements control measures to attain and maintain the 
air quality standards for ozone. The emissions control areas may or may 
not coincide with the nonattainment areas found in 9 VAC 5-20-204, 
depending upon the necessity of the planning requirements. Most of the 
Chapter 40 regulations automatically apply within all of the VOC 
emissions control areas. Some Chapter 40 rules (Articles 4, 36, 37, and 
53) have provisions that apply only to certain existing VOC and 
NOX emission control areas. Other Chapter 40 regulations 
were originally adopted to apply only within certain emission control 
areas.
    The original ozone air quality standard was a 1-hour standard. 
Three VOC and NOX emission control areas, Northern Virginia, 
Hampton Roads, and Richmond, were established in Virginia in order to 
implement control measures to attain the 1-hour ozone air quality 
standard. On July 18, 1997, EPA promulgated a revised 8-hour ozone 
standard of 0.08 parts per million (ppm). This new standard is more 
stringent than the previous 1-hour standard. On April 30, 2004 (69 FR 
23858), EPA designated and classified areas for the 8-hour ozone 
national ambient air quality standards (NAAQS). For most areas, these 
designations became effective June 15, 2004. EPA designated, as 
nonattainment, any area violating the 8-hour ozone NAAQS based upon the 
air quality data for the three years of 2001-2003. These were the most 
recent three years of data available at the time EPA designated 8-hour 
areas. The 8-hour standard replaced the 1-hour standard on June 15, 
2005 (69 FR 23996). Accordingly, the Virginia State Air Pollution 
Control Board promulgated the State 8-hour ozone nonattainment areas 
that took effect on August 25, 2004. In order to implement control 
measures to attain and maintain the air quality standards for ozone, 
the Board proposed to expand the VOC and NOX emissions 
control areas in 9 VAC 5-20-206, and extend

[[Page 52029]]

the geographic applicability of the VOC and NOX regulatory 
rules in Chapter 40 of the regulations into the new 8-hour 
nonattainment areas. On March 2, 2007 (72 FR 9441), EPA published a 
final rulemaking which established a new Fredericksburg VOC Emissions 
Control Area, consisting of Spotsylvania County and Fredericksburg 
City, and expanded the Richmond and Hampton Roads VOC and 
NOX Emission Control Areas. On December 23, 2005 (70 FR 
76165) EPA redesignated the 8-hour Fredericksburg nonattainment area to 
attainment for the 8-hour NAAQS. This revision consists of regulation 
amendments that extend the applicability of four consumer and 
commercial product regulations into the new Fredericksburg VOC 
Emissions Control Area. These amendments are necessary to implement VOC 
contingency measures of the maintenance plan for the Fredericksburg VOC 
Emissions Control Area.

II. Summary of the SIP Revision

    The May 14, 2007 SIP revision contains amendments to 9 VAC 5-20-21, 
which incorporate by reference, two additional test methods and 
procedures needed for 9 VAC 5 Chapter 40, Article 49, Architectural and 
Industrial Maintenance Coatings. These are the American Society for 
Testing and Materials (ASTM) D3912-95, ``Standard Test Method for 
Chemical Resistance of Coatings Used in Light-Water Nuclear Power 
Plants;'' and the American Society for Testing and Materials (ASTM) D 
4082-02, ``Standard Test Method for Effects of Gamma Radiation on 
Coatings for Use in Light-Water Nuclear Power Plants.''
    The May 14, 2007 revision also contains regulation amendments to 9 
VAC 5 Chapter 40 that extend the applicability of four consumer and 
commercial product regulations into the new Fredericksburg VOC 
Emissions Control Area established in 9 VAC 5-20-206 (March 2, 2007, 72 
FR 9441). These regulations presently apply only in the Northern 
Virginia VOC Emissions Control Area and were based on the Ozone 
Transport Commission (OTC) model rules. The OTC developed control 
measures into model rules for a number of source categories and 
estimated emission reduction benefits from implementing those model 
rules. These amendments to Chapter 40 are discussed below.

(1) Emission Standards for Portable Fuel Container Spillage, Article 42

    Virginia's Portable Fuel Container Spillage regulation is being 
amended to apply within the new Fredericksburg VOC Emissions Control 
Area. At the present time this regulation applies only to sources 
located in the Northern Virginia VOC Emissions Control Area (June 8, 
2004, 69 FR 31893). The provisions of this regulation apply to any 
source or person who sells, supplies, offers for sale, or manufactures 
for sale portable fuel containers or spouts in the Northern Virginia 
and Fredericksburg VOC Emissions Control Areas designated in 9 VAC 5-
20-206. The regulation does not apply to any portable fuel container or 
spout manufactured for shipment, sale and use outside of the Northern 
Virginia and Fredericksburg VOC Emission Control Areas. The regulation 
requires each portable fuel container or spout sold in the Northern 
Virginia and Fredericksburg VOC Emission Control Areas to meet the 
following requirements: (1) Have an automatic shut-off and closure 
device; (2) contain one opening for both filling and pouring; (3) meet 
minimal fuel flow rate based on nominal capacity; (4) meet a permeation 
standard; and (5) have a manufacturer's warranty against defects. The 
regulation includes exemptions, standards, testing procedures, 
recordkeeping, and administrative requirements. Compliance with the 
provisions of this regulation is required no later than January 1, 2008 
in the Fredericksburg VOC Emissions Control Area.

(2) Emission Standards for Mobile Equipment Repair and Refinishing, 
Article 48

    Virginia's Mobile Equipment Repair and Refinishing regulation is 
being amended to apply within the new Fredericksburg VOC Emissions 
Control Area. At the present time, this regulation applies only to 
sources located in the Northern Virginia VOC Emissions Control Area 
(June 24, 2004, 69 FR 35253). The provisions of this regulation apply 
to each mobile equipment repair and refinishing operation located in 
the Northern Virginia and Fredericksburg VOC Emissions Control Areas 
designated in 9 VAC 5-20-206. Certain provisions also apply to each 
person providing or selling affected coatings. The provisions of this 
regulation do not apply if the mobile equipment repair and refinishing 
operation is subject to Article 28 (9 VAC 5-40-3860 et seq.) of Chapter 
40, Emission Standards for Automobile and Light Duty Truck Application 
Systems, or Article 34 (9 VAC 5-40-4760 et seq.) of Chapter 40, 
Emission Standards for Miscellaneous Metal Parts and Products Coating 
Application Systems. The provisions of this regulation also do not 
apply to persons applying the coatings who do not receive compensation 
for the application of the coatings, and to mobile equipment repair and 
refinishing operations that use coatings required to meet military 
specifications (MILSPEC) where no other existing coating can be used 
that meets the provisions of this regulation. Also included in the 
regulation are definitions, standards for VOCs, compliance, test 
methods and procedures, monitoring, and reporting and recordkeeping 
requirements. Compliance with the provisions of this regulation is 
required no later than January 1, 2008 in the Fredericksburg VOC 
Emissions Control Area.

(3) Emission Standards for Architectural and Industrial Maintenance 
Coatings, Article 49

    Virginia's Architectural and Industrial Maintenance (AIM) Coatings 
regulation is being amended to apply within the new Fredericksburg VOC 
Emissions Control Area. At the present time, this regulation applies 
only to sources located in the Northern Virginia VOC Emissions Control 
Area (May 12, 2005, 70 FR 24970). This regulation applies to any person 
who supplies, sells, offers for sale, or manufacturers any 
architectural coating for use, as well as any person who applies or 
solicits the application of any architectural coating, located in the 
Northern Virginia and Fredericksburg VOC Emissions Control Areas 
designated in 9 VAC 5-20-206. The provisions of this regulation do not 
apply to the following: (1) Any architectural coating that is sold or 
manufactured for use exclusively outside of the Northern Virginia and 
Fredericksburg VOC Emission Control Areas, or for shipment to other 
manufacturers for reformulation or repackaging; (2) any aerosol coating 
product; or (3) any architectural coating that is sold in a container 
with a volume of one liter (1.057 quart) or less. The regulation is 
also being amended to add standards and definitions for six new coating 
categories: calcimine recoaters, conversion varnishes, concrete surface 
retarder, impacted immersion coatings; nuclear coatings; and 
thermoplastic rubber coating and mastic. These new coatings are listed 
in the Federal AIM regulation (63 FR 48848, September 11, 1998). 
Virginia's regulation sets specific VOC content limits in grams per 
liter for architectural and industrial maintenance coatings, and 
contains administrative requirements for labeling and reporting. There 
are a number of test methods that would be used to demonstrate 
compliance with this rule. Some of these test methods include those 
promulgated by EPA and published by the South Coast and Bay

[[Page 52030]]

Area Air Quality Management Districts of California, as well as the 
American Society for Testing and Materials. The test methods used to 
test coatings must be the most current approved method at the time 
testing is performed. Compliance with the provisions of this regulation 
is required no later than January 1, 2008 in the Fredericksburg VOC 
Emissions Control Area.

(4) Emission Standards for Consumer Products, Article 50

    Virginia's Consumer Products Regulation is being amended to apply 
within the new Fredericksburg VOC Emissions Control Area. At the 
present time, this regulation applies only to sources located in the 
Northern Virginia VOC Emissions Control Area (January 30, 2007, 72 FR 
4207). The rule applies to a person who sells, supplies, offers for 
sale, or manufactures consumer products that contain VOCs as defined in 
9 VAC 5-10-20 throughout the Northern Virginia and Fredericksburg VOC 
Emissions Control Areas designated in 9 VAC 5-20-206. This regulation 
limits VOC emissions from consumer products such as adhesives, adhesive 
removers, aerosol products, air fresheners, antiperspirants and 
deodorants, facial toners and astringents, waxes and polishes (for cars 
and floors, etc.), tile cleaners, tar removers, bug sprays, rug 
cleaners, charcoal lighter fluid, disinfectants, cosmetics, and soaps. 
This regulation does not apply to any consumer product manufactured in 
the Northern Virginia and Fredericksburg VOC Emissions Control Areas 
designated in 9 VAC 5-40-7240 for shipment and use outside of these 
areas. The provisions also do not apply to a manufacturer or 
distributor who sells, supplies, or offers for sale a consumer product 
that does not comply with the VOC standards specified in 9 VAC 5-40-
7270 A, as long as the manufacturer or distributor can demonstrate that 
both the consumer product is intended for shipment and use outside of 
the Northern Virginia and Fredericksburg VOC Emission Control Areas, 
and that the manufacturer or distributor has taken reasonable prudent 
precautions to assure that the consumer product is not distributed to 
those applicable VOC control areas. The regulation sets specific VOC 
content limits in percent VOCs by weight for consumer products. 
Exemptions from the VOC content limits are listed in the rule. Also 
included in the regulation are definitions, innovative products, 
standards and exemptions, requirements for waiver requests, 
administrative requirements for labeling and reporting, test methods 
for demonstrating compliance, compliance schedules, alternative control 
plans, monitoring, and reporting and recordkeeping requirements. 
Compliance with the provisions of this regulation is required no later 
than January 1, 2008 in the Fredericksburg VOC Emissions Control Area. 
Article 49 is also being amended to revise the definition of 
``Automotive windshield washer fluid,'' to allow the higher VOC 
automotive windshield washer fluid standards to also be applied to some 
manual automotive windshield washing systems so that they may be used 
in winter.

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 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 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

    EPA is proposing to approve the Virginia SIP revision submitted on 
May 14, 2007 for regulation amendments to 9 VAC 5 Chapter 20 that 
incorporate by reference test methods and procedures needed for 9 VAC 5 
Chapter 40, Article 49, Emission Standards for Architectural and 
Industrial Maintenance Coatings, and regulation amendments to Chapter 
40 that extend the applicability of four consumer and commercial 
product regulations into the new Fredericksburg VOC Emissions

[[Page 52031]]

Control Area. These amendments are necessary to implement VOC 
contingency measures within the Fredericksburg VOC Emissions Control 
Area. 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, extending the applicability of four consumer 
and commercial product regulations into the new Fredericksburg VOC 
Emissions Control Area, 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, Ozone, Reporting 
and recordkeeping requirements, Volatile organic compounds.

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

    Dated: August 30, 2007.
Donald S. Welsh,
Regional Administrator, Region III.
 [FR Doc. E7-17977 Filed 9-11-07; 8:45 am]

BILLING CODE 6560-50-P
