	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

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

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.

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 [insert date 30
days from date of publication].  

ADDRESSES:  Submit your comments, identified by Docket ID Number
EPA-R03-OAR-2007-0479 by one of the following methods:

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

B.  E-mail:    HYPERLINK "mailto:powers.marilyn@epa.gov" 
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 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:  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 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.  

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 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 (
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 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 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, 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.

August 30, 2007				/s/

___________________________           ____________________________

Dated:                                                      Donald S.
Welsh,

                                                                
Regional Administrator,

                                                                 Region
III.

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