

[Federal Register: December 5, 2007 (Volume 72, Number 233)]
[Rules and Regulations]               
[Page 68511-68515]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05de07-14]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2007-0479; FRL-8500-9]

 
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: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the Commonwealth of Virginia. This revision consists of 
amendments to extend the geographic 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 Area. The revision also incorporates by reference two 
additional test methods and procedures needed for Virginia's 
Architectural and Industrial Maintenance Coatings Rule. EPA is 
approving this revision to the Virginia SIP in accordance with the 
requirements of the Clean Air Act (CAA).

DATES: Effective Date: This final rule is effective on January 4, 2008.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2007-0479. All documents in the docket are listed in 
the http://www.regulations.gov Web site. 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 http://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: Ellen Wentworth, (215) 814-2034, or by 
e-mail at wentworth.ellen@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    On September 12, 2007 (72 FR 52028), EPA published a notice of 
proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR 
proposed the approval of amendments extending the geographic 
applicability of four consumer and commercial product regulations to 
the Fredericksburg VOC Emissions Control Area. The formal SIP revision 
was submitted by the Commonwealth of Virginia on May 14, 2007.

II. Summary of the SIP Revision

    The May 14, 2007 SIP revision contained regulation amendments to 9 
VAC 5 Chapter 40 that extended the geographic applicability of four 
consumer and commercial product regulations--Portable Fuel Container 
Spillage, Mobile Equipment Repair and Refinishing, Architectural and 
Industrial Maintenance Coatings, and Consumer Products--into the new 
Fredericksburg VOC Emissions Control Area established in 9 VAC 5-20-206 
(March 2, 2007, 72 FR 9441). These regulations had formerly applied 
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

[[Page 68512]]

number of source categories and estimated emission reduction benefits 
from implementing those model rules. These regulations are necessary to 
implement VOC contingency measures within the Fredericksburg VOC 
Emissions Control Area. The revision also adds six additional specialty 
coatings to the Architectural and Industrial Maintenance Coatings 
regulation. Other specific requirements of Virginia's SIP revision 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 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 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 Clean Air Act is likewise 
unaffected by this, or any, state audit privilege or immunity law.

IV. Final Action

    EPA is approving a revision to the Commonwealth of Virginia SIP, 
extending the geographic 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. EPA is also approving the incorporation by 
reference of two additional test methods and procedures needed for 
Virginia's architectural and Industrial Maintenance Coatings Rule.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
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 approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this 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 approves 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 rule also does not 
have tribal implications because it will 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). 
This action also does not have Federalism implications because it does 
not 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). 
This action merely approves a state rule implementing a Federal 
requirement, and does not alter the relationship or the distribution of 
power and responsibilities established in the CAA. This rule also is 
not subject to Executive Order 13045 ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997), because it approves a state rule implementing a Federal 
standard.

[[Page 68513]]

    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. 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 CAA. 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. This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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 rule 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. This rule 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 February 4, 2008. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule 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, expanding the geographic applicability of four consumer 
and commercial product regulations to the Fredericksburg VOC Emissions 
Control Area, 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.

    Dated: November 20, 2007.
Donald S. Welsh,
Regional Administrator, Region III.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
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

0
2. In Sec.  52.2420, the table in paragraph (c) is amended by revising 
the entries for Chapter 40, Part II, Sections 5-40-5700, 5-40-5720, 5-
40-5750, 5-40-6970, 5-40-7050, 5-40-7120, 5-40-7130, 5-40-7140, 5-40-
7210, 5-40-7240, 5-40-7250, 5-40-7260, 5-40-7270, 5-40-7300, 5-40-7330, 
and 5-40-7360. The table in paragraph (e) is amended by adding an entry 
for Documents Incorporated by Reference after the eighth existing entry 
for Documents Incorporated by Reference. The amendments read as 
follows:


Sec.  52.2420   Identification of plan.

* * * * *
    (c) * * *

                                 EPA-Approved Virginia Regulations and Statutes
----------------------------------------------------------------------------------------------------------------
                                                         State                              Explanation [former
  State citation (9 VAC 5)       Title/subject      effective date    EPA approval date        SIP citation]
----------------------------------------------------------------------------------------------------------------

----------------------------------------------------------------------------------------------------------------
                                                  * * * * * * *
                                Chapter 40 Existing Stationary Sources (Part IV)
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----------------------------------------------------------------------------------------------------------------
                                                  * * * * * * *
                                           Part II Emissions Standards
----------------------------------------------------------------------------------------------------------------

----------------------------------------------------------------------------------------------------------------
                                                  * * * * * * *
                             Article 42 Portable Fuel Container Spillage (Rule 4-42)
----------------------------------------------------------------------------------------------------------------
5-40-5700..................  Applicability and            10/04/06  12/05/07 [Insert page  Revision extends the
                              designation of                         number where the       applicability to
                              affected facility.                     document begins].      include the
                                                                                            Fredericksburg VOC
                                                                                            Emissions Control
                                                                                            Area.

                                                  * * * * * * *
5-40-5720..................  Standard for volatile        10/04/06  12/05/07 [Insert page
                              organic compounds.                     number where the
                                                                     document begins].

                                                  * * * * * * *
5-40-5750..................  Compliance schedules.        10/04/06  12/05/07 [Insert page
                                                                     number where the
                                                                     document begins].

----------------------------------------------------------------------------------------------------------------

[[Page 68514]]


                                                  * * * * * * *
                    Article 48 Mobile Equipment Repair and Refinishing Operations (Rule 4-48)
----------------------------------------------------------------------------------------------------------------
5-40-6970..................  Applicability and            10/04/06  12/05/07 [Insert page  Revision extends the
                              designation of                         number where the       applicability to
                              affected facility.                     document begins].      include the
                                                                                            Fredericksburg VOC
                                                                                            Emissions Control
                                                                                            Area

                                                  * * * * * * *
5-40-7050..................  Compliance schedule..        10/04/06  12/05/07 [Insert page
                                                                     number where the
                                                                     document begins].
----------------------------------------------------------------------------------------------------------------

----------------------------------------------------------------------------------------------------------------
                                                  * * * * * * *
                    Article 49 Architectural and Industrial Maintenance Coatings (Rule 4-49)
----------------------------------------------------------------------------------------------------------------
5-40-7120..................  Applicability and            10/04/06  12/05/07 [Insert page  Revision extends the
                              designation of                         number where the       applicability to
                              affected facility.                     document begins].      include the
                                                                                            Fredericksburg VOC
                                                                                            Emissions Control
                                                                                            Area.
5-40-7130..................  Definitions..........        10/04/06  12/05/07 [Insert page  Revision adds
                                                                     number where the       definitions for the
                                                                     document begins].      following: ASTM,
                                                                                            Calcimine
                                                                                            recoater,Concrete
                                                                                            surface retarder,
                                                                                            Conversion varnish,
                                                                                            Impacted immersion
                                                                                            coating, Nuclear
                                                                                            coatings, and
                                                                                            Thermoplasftic
                                                                                            rubber coating and
                                                                                            mastic.
5-40-7140..................  Standard for volatile        10/04/06  12/05/07 [Insert page  Revision adds
                              organic compounds.                     number where the       standards for the
                                                                     document begins].      following
                                                                                            categories:
                                                                                            Calcimine recoaters,
                                                                                            Conversion
                                                                                            varnishes, Concrete
                                                                                            surface retarder,
                                                                                            Impacted immersion
                                                                                            coatings, Nuclear
                                                                                            coatings, and
                                                                                            Thermoplastic rubber
                                                                                            coating and mastic.

                                                  * * * * * * *
5-40-7210..................  Compliance schedules.        10/04/06  12/05/07 [Insert page
                                                                     number where the
                                                                     document begins].

----------------------------------------------------------------------------------------------------------------
                                                  * * * * * * *
                                    Article 50 Consumer Products (Rule 4-50)
----------------------------------------------------------------------------------------------------------------
5-40-7240..................  Applicability........        10/04/06  12/05/07 [Insert page  Revision extends the
                                                                     number where the       applicability to
                                                                     document begins].      include the
                                                                                            Fredericksburg VOC
                                                                                            Emissions Control
                                                                                            Area.
5-40-7250..................  Exemptions...........        10/04/06  12/05/07 [Insert page
                                                                     number where the
                                                                     document begins].
5-40-7260..................  Definitions..........        10/04/06  12/05/07 [Insert page
                                                                     number where the
                                                                     document begins].
5-40-7270..................  Standard for volatile        10/04/06  12/05/07 [Insert page
                              organic compounds.                     number where the
                                                                     document begins].

                                                  * * * * * * *
5-40-7300..................  Administrative               10/04/06  12/05/07 [Insert page
                              requirements.                          number where the
                                                                     document begins].

                                                  * * * * * * *
5-40-7330..................  Compliance schedules.        10/04/06  12/05/07 [Insert page
                                                                     number where the
                                                                     document begins].

                                                  * * * * * * *
5-40-7360..................  Notification, records        10/04/06  12/05/07 [Insert page
                              and reporting.                         number where the
                                                                     document begins].
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    (e) * * *
* * * * *

[[Page 68515]]



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

                                                  * * * * * * *
Documents Incorporated by          Fredericksburg VOC         05/14/07  12/05/07 [Insert     State effective
 Reference (9 VAC 5-20-21,          Emissions Control                    page number where    date is 10/04/06.
 Paragraphs E.4.a. (21) and         Area Designated in                   the document
 (22))..                            9 VAC 5-20-206.                      begins].

                                                  * * * * * * *
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[FR Doc. E7-23386 Filed 12-4-07; 8:45 am]

BILLING CODE 6560-50-P
