	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

	[EPA-R03-OAR-2008-0472; FRL-        ] 

Approval and Promulgation of Air Quality Implementation Plans; Virginia;


Stafford County Reasonably Available Control Technology Under the 8-Hour
Ozone National Ambient Air Quality Standard

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 SIP revision fulfills Virginia’s
reasonably available control technology (RACT) requirements under the
Clean Air Act (CAA or the Act) with respect to the 8-hour ozone national
ambient air quality standard (NAAQS) in Stafford County.  Virginia has
fulfilled these requirements by submitting a certification that 1-hour
ozone NAAQS RACT controls for sources in the Commonwealth subject to
control technology guidelines (CTGs) and for a single major source not
subject to any CTG, continue to represent RACT under the 8-hour NAAQS,
and submitting a negative declaration demonstrating that no facilities
exist in Stafford County that are subject to certain enumerated CTGs
that have not been adopted by Virginia.

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-2008-0472.  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:  Gregory Becoat, (215) 814-2036, or by
e-mail at becoat.gregory@epa.gov.

  

SUPPLEMENTARY INFORMATION:  

I.  Background	

On August 7, 2008 (73 FR 45925), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Virginia.  The NPR proposed
approval of Stafford County’s requirements of RACT under the 8-hour
ozone NAAQS set forth by the CAA.  The formal SIP revision was submitted
by the Virginia Department of Environmental Quality on April 21, 2008.  

II.  Summary

Sections 172(c)(1) and 182(b)(2) of the CAA require that all SIPs
satisfy the nitrogen oxides (NOx) and volatile organic compounds (VOCs)
RACT requirements that apply in areas that have not attained the NAAQS
for ozone.  See 42 U.S.C. 7502(c)(1), 42 U.S.C. 7511a(b)(2), and 42
U.S.C. 7511a(f).  EPA has determined that States that have RACT
provisions approved in their SIPs for 1-hour ozone nonattainment areas
have several options for fulfilling the RACT requirements for the 8-hour
ozone NAAQS.  If a State meets certain conditions, it may certify that
previously adopted 1-hour ozone RACT controls in the SIP continue to
represent RACT control levels for purposes of fulfilling 8-hour ozone
RACT requirements.  See Final Rule To Implement the 8-Hour Ozone
National Ambient Air Quality Standard--Phase 2; Final Rule To Implement
Certain Aspects of the 1990 Amendments Relating to New Source Review and
Prevention of Significant Deterioration as They Apply in Carbon
Monoxide, Particulate Matter and Ozone NAAQS; Final Rule for
Reformulated Gasoline (Phase 2 Rule) 70 FR 71612, 71655, November 29,
2005.  Alternatively, a State may adopt new or more stringent
regulations that represent RACT control levels, either in lieu of or in
conjunction with a certification.  

The Commonwealth of Virginia has submitted a certification that
previously adopted RACT controls in Virginia’s SIP that were approved
by EPA under the 1-hour ozone NAAQS continue to represent RACT for the
8-hour implementation purposes.  This previously adopted RACT consists
of Virginia’s adoption of EPA promulgated CTGs for those source
categories that apply to existing sources in Stafford County.  Virginia
has also submitted a negative declaration demonstrating that no
facilities exist in Stafford County for those CTGs that have not been
adopted by Virginia.

Virginia has also certified, based on consideration of additional
research, that the 1-hour ozone NAAQS RACT determination for the only
major stationary source located in Stafford County not covered by a CTG
continues to represent RACT under the 8-hour ozone NAAQS.  Other
specific requirements of RACT and the rationale for EPA's proposed
action are explained in the NPR and will not be restated here.  

On September 8, 2008, EPA received adverse comments from State of New
Jersey Department of Environmental Protection on the NPR.  A summary of
the comments submitted and EPA(s response is provided in Section III of
this document.

III.  Summary of Public Comments and EPA Responses

Comment:  The commenter opposes the approval of the SIP revision
submitted by Virginia for Stafford County.  The commenter notes that
Stafford County is a moderate ozone nonattainment area, and is required
to implement RACT on all major VOC and NOx sources, and all sources
covered by a CTG.  The commenter also states that in the final rule to
implement the 8-hour ozone standard (i.e., the Phase 2 Rule) EPA
indicates that States may rely on existing CTGs and the prior 1-hour
RACT determinations as presumptive RACT.  The comment also states that
most CTGs and prior 1-hour RACT determinations were done over a decade
ago, and asserts that the emission limits are no longer RACT because of
advancements in air pollution control technology.  This is especially
the case, it argues, for nitrogen oxides.  Additionally, the commenter
appears to believe that section 108 of the Act requires EPA to review,
modify and reissue control technology in a timely fashion, that EPA has
failed to do so, and that this failure to do so prevents EPA from
allowing States the discretion of certifying that previous 1-hour ozone
RACT determinations fulfill obligations under the 8-hour ozone NAAQS. 
The commenter also asserts that it is adversely affected because it is a
downwind state.  Finally, the commenter notes that and sections
110(a)(2)(D) and Part D of the CAA require upwind states to include
adequate controls in their SIPs prohibiting interstate transport of air
pollutants in amounts that contribute to nonattainment in any downwind
state.  

Response:  The commenter correctly notes that Stafford County is a
moderate ozone nonattainment area and is required to implement RACT on
all major VOC and NOx sources, and all sources covered by a CTG.  The
RACT provisions of the CAA are set forth in sections 172(c)(1) and
182(b)(2) of Part D of the Act.  42 U.S.C. 7502(c)(1), 42 U.S.C.
7511a(b)(2).  Section 172 applies to RACT in so-called “subpart 1”
areas.  Stafford County is not a “subpart 1” area.  RACT, as it
applies in moderate or above ozone nonattainment areas, or within the
OTR, i.e., to Stafford County, is a specific requirement set forth in
Section 182(b)(2) of Part D of the Act.  Section 182(b)(2) identifies
the categories of sources to which RACT applies.  Section 182(b)(2) does
not specify the level of control required to meet the RACT requirement. 


The commenter also correctly acknowledges that the Phase 2 Rule, 70 FR
71612, explicitly addressed whether, and the circumstances under which,
states may continue to rely on existing CTGs and the prior 1-hour RACT
determinations.  Specifically, in the Phase 2 Rule, EPA determined that
States may certify that “previously required RACT controls represent
RACT for 8-hour implementation purposes.” 70 FR at 71652.

The commenter does not allege that EPA’s approval of the SIP revision
is inconsistent with the provisions of the Phase 2 Rule.  The final
action establishing those provisions was taken by EPA, not in today’s
action, but in the Federal Register notice for the Phase 2 Rule
published on November 29, 2005, 70 FR 71612.   Challenges to the Phase 2
Rule have been brought by commenter and others in the U.S. Court of
Appeals for the District of Columbia.  Natural Resources Defense Council
v EPA (D.C. Cir. No. 06-1045 and consolidated cases).

The Phase 2 Rule, in fact, explicitly addresses the State’s obligation
to consider new information when deciding whether to certify that prior
RACT determinations remain valid for the 8-hour ozone NAAQS.  The
commenter does not allege that the State has failed to satisfy that
obligation, or that it has not met any other requirements in the Phase 2
Rule for certifying that its prior RACT determinations remain valid for
the 8-hour ozone NAAQS.  Thus, while we agree with commenter that many
of the CTGs have not been revised since they were issued, we do not
agree that it is therefore improper for EPA to approve this SIP
revision.  In the Phase 2 Rule, EPA specifically addressed concerns
arising from our recognition that “the CTGs/ACTs . . . may not provide
the most accurate picture of current control options.”  70 FR at
71655.  

In response, we decided that “States and other interested parties
should consider available information that may supplement the CTG and
ACT documents.  In cases where additional information is presented, for
example, as part of notice-and-comment rulemaking on a RACT SIP
submittal, States (and EPA) would necessarily consider the additional
data in reviewing what control obligation is consistent with RACT.” 
70 FR at 71655.  Only after conducting this review may a State certify
that a 1-hour ozone RACT determination continues to represent an
appropriate RACT level of control for the 8-hour ozone program.  Id. 
Absent data indicating that the previous RACT determination is no longer
appropriate, the State may certify that the existing 1-hour RACT
determination fulfills the requirement for 8-hour ozone RACT, and the
State need not submit in its SIP a new RACT requirement for those
sources. Id. 

Although the commenter broadly alleges that the CTGs no longer reflect
RACT because they have not been updated recently, the commenter does not
identify any specific deficiencies or indicate which, if any, of the
particular CTGs adopted by Virginia it believes to be defective. 
Furthermore, no evidence in the record indicates that Virginia either
determined -- or that anyone brought to its’ attention during the
notice and comment rulemaking for this SIP submission – that evidence
existed to cast doubt on the appropriateness under the 8-hour ozone
NAAQS of any of the previously adopted and SIP-approved CTGs.  A
commenter bears some burden of bringing to an agency’s attention at
least some particulars of an alleged defect in a rulemaking.  See,
International Fabricare Inst. v. EPA, 972 F.2d 384, 391 (D.C. Cir.
1992).  

In sum, the commenter has not identified any new information that has
become available, but that the State did not consider and has not even
alleged that any particular CTG actually adopted into the Virginia SIP
fails to represent RACT under the 8-hour ozone NAAQS.  Thus, under the
specific terms of the Phase 2 ozone implementation rule, Virginia is
entitled to rely on that Rule’s presumption that absent evidence to
the contrary, a state may certify that CTGs previously adopted to meet
1-hour ozone NAAQS continue to meet the requirements for RACT under the
8-hour ozone NAAQS. See 70 FR at 71652, 71654-55. 

With respect to the single major source in Stafford County that is not
subject to a CTG, Virginia took reasonable steps to seek out additional
information to assure that the 1-hour ozone NAAQS source-specific RACT
determination for this source continues to represent RACT under the
8-hour ozone NAAQs.  This is consistent with our determination in the
Phase 2 Rule that the certification must be submitted with appropriate
supporting information, including the consideration of new data.  In all
cases where additional information is presented, States (and EPA) must
consider the additional information as part of that rulemaking, and
absent such information, the State may certify existing RACT as meeting
the 8-hour ozone requirements. 70 FR at 71655.

Virginia reviewed EPA’s RACT/BACT/LAER clearinghouse for sources
within the same Standard Industrial Classification code as the sole
major non-CTG source in Stafford County, and determined that there was
no information to indicate that the 8-hour ozone RACT determination
should be different from the August 10, 1998 1-hour ozone RACT
determination for this facility, which has been approved by EPA.  See 66
FR 8, January 2, 2001.  Based on the forgoing, the low potential
emissions from the facility, and the even lower actual emissions from
the facility, Virginia determined in its SIP submission, consistent with
the Phase 2 Rule, that the existing 1-hour RACT determination could be
certified as fulfilling the 8-hour ozone RACT requirements.  As with our
analysis with respect to the CTG RACT certification, we believe that
Virginia is entitled to rely on the Phase 2 Rule’s presumption that
absent evidence to the contrary, a state may certify this 1-hour ozone
NAAQS determination as meeting the requirements for RACT under the
8-hour ozone NAAQS.

	

We also do not agree with commenter’s apparent beliefs regarding
section 108 of the Clean Air Act.  With respect to that section, the
commenter states that “[a]ccording to Section 108(c) of the Clean Air
Act, EPA has an obligation to review, modify and reissue control
techniques” and that “USEPA has failed to do so in a timely
fashion.”  Section 108 of the Act provides that “the Administrator
shall from time to time review, and as appropriate, modify or reissue
any criteria or information on control techniques. . .”  Section 108
does not establish time frames for the Administrator to review, modify,
or reissue control techniques.  Furthermore, section 108 provides that
the review, modification or reissuance of a RACT is only to be done
“as appropriate.” EPA believes that Congress left the decision
whether to review, modify or reissue a control technique to the
Administrator’s discretion. 

Finally, with respect to the comments related to requirements of section
110(a)(2)(D) and Part D of the Act, EPA agrees with the commenter that
section 110(a)(2)(D) requires, among other things, that a State’s SIP
needs to contain provisions to regulate the interstate transport of air
pollution that significantly contributes to nonattainment or interferes
with maintenance of a NAAQS in another State. 42 U.S.C. 7411(a)(2)(D). 
Although Title I, Part D of the Act does not contain similar language,
section 184 is within Title I, Part D of the Act.  Section 184 contains
specific provisions to address interstate transport of ozone and its
precursors within the Ozone Transport Region (OTR) (which includes both
New Jersey and Stafford County).  This comment, however, is not relevant
to the present action because EPA is not taking action here to determine
whether Virginia has satisfied the requirements of CAA sections
110(a)(2)(D) or 184.  EPA has never interpreted the RACT provisions in
section 172(c)(1) or 182(b)(2) as requiring States to address interstate
transport issues.  Indeed, EPA has expressly stated in the Phase 2 Rule
that we “believe [] that section 172(c) is not the appropriate section
of the CAA to address the transport of ozone and ozone precursors. .
.” 70 FR at 71653.  We believe, based on the forgoing, that the
section 182(b)(2) RACT requirements also are not intended as a mechanism
for addressing interstate transport of pollutants.

IV.  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 SIP revision submitted to EPA by the Commonwealth
of Virginia on April 21, 2008.  This SIP revision contains the
requirements of RACT set forth by the CAA under the 8-hour ozone NAAQS. 


V.  Statutory and Executive Order Reviews 

A.  General Requirements 

Under the CAA, the Administrator is required to approve a SIP
submission that complies with 

the provisions of the Act and applicable Federal regulations.  42 U.S.C.
7410(k); 40 CFR 

52.02(a).  Thus, in reviewing SIP submissions, EPA’s role is to
approve state choices, provided

that they meet the criteria of the CAA.  Accordingly, this action merely
approves state law as meeting Federal requirements and does not impose
additional requirements beyond those

imposed by state law.  For that reason, this action:

is not a "significant regulatory action” subject to review by the
Office of Management and Budget under Executive Order 12866 (58 FR
51735, October 4, 1993);  

does not impose an information collection burden under the provisions of
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

is certified as not having a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.);  

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);

does not have Federalism implications as specified in Executive Order
13132 (64 FR

	43255, August 10, 1999);

is not an economically significant regulatory action based on health or
safety risks subject 

	to Executive Order 13045 (62 FR 19885, April 23, 1997); 

is not a significant regulatory action subject to Executive Order 13211
(66 FR 28355, 

	May 22, 2001); 

is not subject to requirements of Section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note)
because application of those 

	requirements would be inconsistent with the CAA; and 

does not provide EPA with the discretionary authority to address, as
appropriate, disproportionate human health or environmental effects,
using practicable and legally permissible methods, under Executive Order
12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP
is not approved to apply in Indian country 

located in the state, and EPA notes that it will not impose substantial
direct costs on tribal governments or preempt tribal law.

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 action 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.  A major rule cannot take effect
until 60 days after it is 

published in the Federal Register.  This action 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 Clean Air Act, 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 action 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 the Stafford County RACT under the 8-hour
ozone NAAQS, 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.

__December 11, 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 Section 52.2420, the table in paragraph (e) is amended by adding
the entry for RACT under the 8-hour ozone NAAQS-Stafford County at the
end of the table to read as follows: 

( 52.2420  		Identification of plan.

*		*		*		*		*

(e)* * *

Name of non-regulatory SIP revision	

Applicable geographic area	

State submittal date	

EPA approval date	

Additional 

explanation



*                    *                      *                   *       
           *                 *                    *

RACT under the 

8-Hour NAAQS	

Stafford County	

4/21/2008	

[Insert Federal Register page number where the document begins and date]






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