
[Federal Register: November 3, 2009 (Volume 74, Number 211)]
[Proposed Rules]               
[Page 56754-56756]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03no09-21]                         

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2008-0780; FRL-8976-5]

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

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 SIP revision 
consists of amendments to the Commonwealth's existing regulations in 
order to clarify and recodify provisions covering case-by-case 
reasonably available control technology (RACT), as well as to add the 
1997 8-hour ozone standard RACT requirements to the Commonwealth's 
regulations. This action is being taken under the Clean Air Act (CAA).

DATES: Written comments must be received on or before December 3, 2009.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2008-0780 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: fernandez.cristina@epa.gov.
    C. Mail: EPA-R03-OAR-2008-0780, 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-
2008-0780. 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

[[Page 56755]]

protected through www.regulations.gov or e-mail. The 
www.regulations.gov Web site 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: Gregory Becoat, (215) 814-2036, or by 
e-mail at becoat.gregory@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    On September 8, 2008, the Commonwealth of Virginia submitted a 
regulation revision for case-by-case RACT determinations, which 
consists of amendments to the existing regulations in order to 
implement the non-control techniques guidelines RACT specific 8-hour 
ozone nonattainment area requirements of subpart X of 40 CFR Part 51, 
and to restructure and recodify the regulations for clarity. In 
addition to clarifying and recodifying the existing provisions covering 
case-by-case RACT determinations, the regulation amendments create a 
new Rule 4-51 (Article 51 of 9 VAC 5 Chapter 40)--Emission Standards 
for Stationary Sources Subject to Case-by-Case RACT Determinations, in 
order to separate the RACT specific requirements from the general 
process requirements of Article 4 of 9 VAC 5 Chapter 40. These 
amendments consisted only of changes in style or form.
    The regulation amendments also add the 1997 8-hour ozone standard 
requirements set forth by the CAA. Subpart X of 40 CFR Part 51 
specifically defines the provisions for implementation of the 8-hour 
ozone national ambient air quality standard (NAAQS). The rule specifies 
dates by when states must submit their RACT SIPs, and when RACT must be 
implemented. The rule also requires that nonattainment areas meet the 
requirements of 40 CFR 51.900(f), which includes RACT and major source 
applicability cut-offs for purposes of RACT.

II. Summary of SIP Revision

    Further details of the Commonwealth of Virginia's regulation 
revisions can be found in a Technical Support Document prepared for 
this rulemaking. This SIP revision consists of the following changes:
    1. Addition of Rule 4-51--Emission Standards for Stationary Sources 
Subject to Case-by-Case RACT Determinations, in order to separate the 
RACT specific requirements from the general process requirements of 
Article 4 of 9 VAC 5 Chapter 40.
    2. Administrative wording changes to regulations 9 VAC 5-40-250A. 
and 9 VAC 5-40-250B.
    3. Deletion of definition of ``Reasonably available control 
technology'' in 9 VAC 5-40-250C. and addition of the definition to 9 
VAC 5-40-7380 in Article 51 of 9 VAC 5 Chapter 40.
    4. Addition of the following definitions to regulation 9 VAC 5-40-
7380C.--Terms defined: ``Presumptive RACT,'' ``Theoretical potential to 
emit'' and ``Tpy.''
    5. All the definitions in regulation 9 VAC 5-40-311B.3--Terms 
defined, were deleted and added to 9 VAC 5-40-7380C. in Article 51 of 9 
VAC 5 Chapter 40.
    6. Repealed regulations 9 VAC 5-40-300--Standard for volatile 
organic compounds, 9 VAC 5-40-310--Standard for nitrogen oxides, and 9 
VAC 5-40-311--Reasonably available control technology guidelines for 
stationary sources of nitrogen oxides, in Article 4 of 9 VAC 5 Chapter 
40 and replaced them with 9 VAC 5-40-7390--Standard for volatile 
organic compounds (one-hour standard), 9 VAC 5-40-7410--Standard for 
nitrogen oxides (one-hour ozone standard), and 9 VAC 5-40-7430--
Presumptive reasonably available control technology guidelines for 
stationary sources of nitrogen oxides, respectively, in Article 51 of 9 
VAC 5 Chapter 40.
    7. Addition of the 1997 8-hour ozone standard requirements for RACT 
in regulations 9 VAC 5-40-7400--Standard for volatile organic compounds 
(eight-hour ozone standard) and 9 VAC 5-40-7420--Standard for nitrogen 
oxides (eight-hour ozone standard).

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

[[Page 56756]]

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 CAA 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 that 
clarifies and recodifies provisions covering case-by-case RACT, as well 
as adds the 1997 8-hour ozone standard requirements to the 
Commonwealth's regulations. EPA views the administrative changes and 
re-codifications as 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 NAAQS, nor 
interfere with any other provision of the CAA. However, regulation 9 
VAC 5-40-7420F. and G. incorrectly cross-references the Commonwealth's 
VOC regulations at 9 VAC 5-40-7390, instead of its nitrogen oxides 
regulation at 9 VAC 5-40-7410. The Commonwealth is in the process of 
correcting the cross-references in this regulation and will submit the 
correction to EPA. EPA does not intend to finalize this action until 
after the Commonwealth formally submits the corrected versions of 9 VAC 
5-40-7420F. and G. to EPA as part of this SIP revision. EPA does not 
intend to reopen the comment period before taking final action on this 
SIP revision. 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 the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA 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 Clean Air Act. Accordingly, 
this action merely proposes to approve state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed 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 (Pub. L. 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 proposed rule, pertaining to amendments to 
Virginia's case-by-case RACT determinations, 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Nitrogen dioxide, 
Ozone, Reporting and recordkeeping requirements, Volatile organic 
compounds.

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

    Dated: October 22, 2009.
William C. Early,
Acting Regional Administrator, Region III.
[FR Doc. E9-26340 Filed 11-2-09; 8:45 am]

BILLING CODE 6560-50-P
