	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

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

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 [insert date 30
days from date of publication].

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:    HYPERLINK "mailto:fernandez.cristina@epa.gov" 
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 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 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 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.  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 (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 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.

                                                                        
                          

__October 22, 2009___                                             
_____________/s/_______________

Dated:                             		   		William C. Early, 

                          					Acting Regional Administrator,

                                                                 	
Region III.

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