	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

	[EPA-R03-OAR-2007-1169; FRL-        ]

Approval and Promulgation of Air Quality Implementation Plans; Virginia;
Amendments to Existing Regulation Provisions Concerning Reasonably
Available Control Technology

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Direct final rule.

SUMMARY:  EPA is taking direct final action to approve revisions to the
Commonwealth of Virginia State Implementation Plan (SIP).  The revisions
pertains to administrative amendments 

to the Commonwealth regulation governing source-specific nitrogen oxides
(NOx) reasonable available control technology (RACT).  EPA is approving
these revisions to the Commonwealth 

of Virginia SIP in accordance with the requirements of the Clean Air Act
(CAA).  

             

DATES:  This rule is effective on [Insert date 60 days after publication
in the Federal Register] without further notice, unless EPA receives
adverse written comment by [Insert date 30 days 

after publication in the Federal Register].  If EPA receives such
comments, it will publish a 

timely withdrawal of the direct final rule in the Federal Register and
inform the public that the 

rule will not take effect.

ADDRESSES:  Submit your comments, identified by Docket ID Number
EPA-R03-OAR-

2007-1169 by one of the following methods:

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

     B.    E-mail:  fernandez.cristina@epa.gov

    

C.    Mail:  EPA-R03-OAR-2007-1169, Cristina Fernandez, 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-2007-1169.  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 Virginia Department of Environmental Quality, 629 East
Main Street, Richmond, Virginia, 23219.

FOR FURTHER INFORMATION CONTACT:  Gregory Becoat, (215) 814-2036, or by
e-mail at becoat.gregory@epa.gov.

SUPPLEMENTARY INFORMATION:  

I.  Summary of the SIP Revision

On September 28, 2006, the Commonwealth of Virginia submitted a revision
to its State Implementation Plan.  The revision consists of
administrative amendments to Virginia’s Regulation A99 pertaining to
RACT for the control of NOx emissions from major stationary sources. 
The amendments consist of administrative wording changes, removal of
surplus definitions, and the paragraph renumbering of a particular
section.  

II.   Description of SIP Revision and EPA Review

These SIP revisions consist of the following changes: 

1.  Administrative wording changes to Regulations 9 VAC 5-40-240, 9 VAC
5-40-250, and 9 VAC 5-40-311B.

 2.  Removal of definitions “Combustion unit,” “Fuel burning
equipment installation,” and “Total capacity” in section 9 VAC
5-40-311B.3.  Section 9 VAC 5-40-311B.1 establishes that the definitions
in section 9 VAC 5-40-311B.3 apply only to section 9 VAC 5-40-311. 
Although EPA had approved these revisions on April 28, 1999 (64 FR
22789), these three terms are used only in regulatory provisions which
are not part of the approved Virginia SIP. 

 3.  Renumbering of 9 VAC 5-40-311C.3.b., d., e., f., and g. to 9 VAC
5-40-311C.3.a., through e. respectively.

EPA views the revisions to 9 VAC 5-40-240, 9 VAC 5-40-250, and 9 VAC
5-40-311B., as administrative changes.  EPA also views the renumbering
of 9 VAC 5-40-311C.3.b., d., e., f., and g. to 9 VAC 5-40-311C.3.a.,
through e. as an administrative re-codification.  EPA considers these
revisions non-substantive, as they do not affect the scope of the
currently approved Virginia SIP, and consequently, cannot interfere with
timely attainment or progress towards attainment of a national ambient
air quality standard (NAAQS), nor interfere with any other provision of
the Clean Air Act (CAA). 

   

III.  General Information Pertaining to SIP Submittals from the
Commonwealth of Virginia

In 1995, Virginia adopted legislation that provides, subject to certain
conditions, for an environmental assessment (audit) (privilege(' for
voluntary compliance evaluations performed by a regulated entity.  The
legislation further addresses the relative burden of proof for parties
either asserting the privilege or seeking disclosure of documents for
which the privilege is claimed.  Virginia's legislation also provides,
subject to certain conditions, for a penalty waiver for violations of
environmental laws when a regulated entity discovers such violations
pursuant to a voluntary compliance evaluation and voluntarily discloses
such violations to the Commonwealth and takes prompt and appropriate
measures to remedy the violations.  Virginia's Voluntary Environmental
Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege
that protects from disclosure documents and information about the
content of those documents that are the product of a voluntary
environmental assessment. The Privilege Law does not extend to documents
or information (1) that are generated or developed before the
commencement of a voluntary environmental assessment; (2) that are
prepared independently of the assessment process; (3) that demonstrate a
clear, imminent and substantial danger to the public health or
environment; or (4) that are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney
General provided a legal opinion that states that the Privilege law, Va.
Code Sec. 10.1-1198,  precludes granting a privilege to documents and
information (required by law,( including documents and information
(required by Federal law to maintain program delegation, authorization
or approval,( since Virginia must (enforce Federally authorized
environmental programs in a manner that is no less stringent than their
Federal counterparts. . . .(   The opinion concludes that ([r]egarding (
10.1-1198, therefore, documents or other information needed for civil or
criminal enforcement under one of these programs could not be privileged
because such documents and information are essential to pursuing
enforcement in a manner required by Federal law to maintain program
delegation, authorization or approval.(  

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that ([t]o
the extent consistent with requirements imposed by Federal law,(  any
person making a voluntary disclosure of information to a state agency
regarding a violation of an environmental statute, regulation, permit,
or administrative order is granted immunity from administrative or civil
penalty.  The Attorney General's January 12, 1998 opinion states that
the quoted language renders this statute inapplicable to enforcement of
any Federally authorized programs, since (no immunity could be afforded
from administrative, civil, or criminal penalties because granting such
immunity would not be consistent with Federal law, which is one of the
criteria for immunity.(   

Therefore, EPA has determined that Virginia's Privilege and Immunity
statutes will not preclude the Commonwealth from enforcing its program
consistent with the Federal requirements.  In any event, because EPA has
also determined that a state audit privilege and immunity law can affect
only state enforcement and cannot have any impact on Federal enforcement
authorities, EPA may at any time invoke its authority under the CAA,
including, for example, sections 113, 167, 205, 211 or 213, to enforce
the requirements or prohibitions of the state plan, independently of any
state enforcement effort.  In addition, citizen enforcement under
section 304 of the CAA is likewise unaffected by this, or any, state
audit privilege or immunity law. 

IV.  Final Action

EPA is approving the Commonwealth of Virginia SIP revision to make the
administrative changes to 9 VAC 5-40-240, 9 VAC 5-40-250, and 9 VAC
5-40-311, which was submitted on September 28, 2006.  EPA is publishing
this rule without prior proposal because the Agency views this as a
noncontroversial amendment and anticipates no adverse comment.  However,
in the (Proposed Rules( section of today(s Federal Register, EPA is
publishing a separate document that will serve as the proposal to
approve the SIP revision if adverse comments are filed.  This rule will
be effective on [Insert date 60 days from date of publication in the
Federal Register] without further notice unless EPA receives adverse
comment by [Insert date 30 days from date of publication in the Federal
Register].  If EPA receives adverse comment, EPA will publish a timely
withdrawal in the Federal Register informing the public that the rule
will not take effect.  EPA will address all public comments in a
subsequent final rule based on the proposed rule.  EPA will not
institute a second comment period on this action.  Any parties
interested in commenting must do so at this time.  Please note that if
EPA receives adverse comment on an amendment, paragraph, or section of
this rule and if that provision may be severed from the remainder of the
rule, EPA may adopt as final those provisions of the rule that are not
the subject of an adverse comment.  

V.  Statutory and Executive Order Reviews 

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 pertaining to amendments to the Commonwealth of Virginia
regulations governing source-specific NOx RACT 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.

February 12, 2008							/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, Sections 5-40-240, 5-40-250, and 5-40-311 to
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 II	

Emission Standards

*     *     *     *     *    *     *

Article 4	General Process Operations (Rule 4-4)

5-40-240	Applicability and designation of affected facility.	1/1/02
[Insert Federal Register publication date] [Insert page number where the
document begins]

	5-40-250	Definitions.	1/1/02	[Insert Federal Register publication date]
[Insert page number where the document begins]

	*     *     *     *     *    *     *

5-40-311	Reasonably available control technology guidelines for
stationary sources of nitrogen oxides.	1/1/02	[Insert Federal Register
publication date] [Insert page number where the document begins]	Removal
of definitions “Combustion unit,” “Fuel burning equipment
installation” and “Total capacity” in 9 VAC 5-40-311B.3.

Exception: 311D.

*     *     *     *     *    *     *



*    *     *     *      *

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