	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:  Final rule.

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).   

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-2007-0479.  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:  Ellen Wentworth, (215) 814-2034, or by
e-

mail at   HYPERLINK "mailto:wentworth.ellen@epa.gov" 
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 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 ( 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 (Public Law 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.

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 [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 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.

__November 20, 2007______				__________/s/_______________

Dated:                            				Donald S. Welsh,                  
              								Regional Administrator,

                                  					Region III.

40 CFR Part 52 is amended as follows: 

PART 52 - [AMENDED] 

1.  The authority citation for 40 CFR part 52 continues to read as
follows: 

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

Subpart VV ( Virginia

2.  In ( 52.2420, the table in paragraph (c) is amended by revising the
entries for 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:

( 52.2420  	Identification of plan.

*    *    *    *   *   

(c) ***

 

	EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES

State citation     (9 VAC 5)	Title/subject	State effective date	EPA
approval date	Explanation [former SIP citation]



*     *     *     *     *    *     *

Chapter 40	Existing Stationary Sources (Part IV)

*     *     *     *     *    *     *

Part II Emissions Standards

*     *     *     *     *    *     *

Article 42             Portable Fuel Container Spillage (Rule 4-42)

5-40-5700	Applicability and designation of affected facility	10/04/06
[Insert Federal Register publication date] [Insert page number where the
document begins]	Revision  extends the applicability to include the
Fredericksburg VOC Emissions Control Area.  

*     *     *     *     *    *     *

5-40-5720	Standard for volatile organic compounds	10/04/06	[Insert
Federal Register publication date] [Insert page number where the
document begins]

	*     *     *     *     *    *     *

5-40-5750	Compliance schedules 	10/04/06	[Insert Federal Register
publication date] [Insert page number where the document begins]

	*     *     *     *     *    *     *

Article 48                 Mobile Equipment Repair and Refinishing
Operations (Rule 4-48)

5-40-6970	Applicability and designation of affected facility	10/04/06
[Insert Federal Register publication date] [Insert page number where the
document begins]	Revision  extends the  applicability to include the
Fredericksburg VOC Emissions Control Area

*     *     *     *     *    *     *

5-40-7050	Compliance schedule	10/04/06	[Insert Federal Register
publication date] [Insert page number where the document begins]

	*     *     *     *     *    *     *

Article 49                Architectural And Industrial Maintenance
Coatings (Rule 4–49)

5-40-7120	Applicability and designation of affected facility	10/04/06
[Insert Federal Register publication date] [Insert page number where the
document begins]	Revision  extends the applicability to include the 
Fredericksburg VOC Emissions Control Area.  

5-40-7130	Definitions	10/04/06	[Insert Federal Register publication
date] [Insert page number where the document begins]	Revision adds
definitions for the following: ASTM,  Calcimine recoater, 

Concrete surface retarder, 

Conversion varnish, Impacted immersion coating, Nuclear coating, and
Thermoplasatic rubber coating and mastic.

5-40-7140	Standard for volatile organic compounds	10/04/06	[Insert
Federal Register publication date] [Insert page number where the
document begins]	Revision adds standards for the 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	[Insert Federal Register
publication date] [Insert page number where the document begins]

	*     *     *     *     *    *     *

Article 50         Consumer Products (Rule 4-50)

5-40-7240	Applicability	10/04/06	[Insert Federal Register publication
date] [Insert page number where the document begins]	Revision  extends
the applicability to include the Fredericksburg VOC Emissions Control
Area

5-40-7250	Exemptions	10/04/06	[Insert Federal Register publication date]
[Insert page number where the document begins]

	5-40-7260	Definitions	10/04/06	[Insert Federal Register publication
date] [Insert page number where the document begins]

	5-40-7270	Standard for volatile organic compounds	10/04/06	[Insert
Federal Register publication date] [Insert page number where the
document begins]	.

*     *     *     *     *    *     *

5-40-7300	Administrative requirements	10/04/06	[Insert Federal Register
publication date] [Insert page number where the document begins]

	*     *     *     *     *    *     *

5-40-7330	Compliance schedules	10/04/06	[Insert Federal Register
publication date] [Insert page number where the document begins]

	*     *     *     *     *    *     *

5-40-7360	Notification, records and reporting	10/04/06	[Insert Federal
Register publication date] [Insert page number where the document begins

	

 

State citation

(9 VAC 5)	Title/subject	State 

Effective

date

	EPA

approval

date	Explanation

[former SIP

Citation]

*     *     *    *    *     *     *



*     *     *     *     *

(e)***

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

*     *     *     *     *    *     *

Documents Incorporated by Reference 

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



*     *     *     *     *    *     *





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