
[Federal Register Volume 76, Number 12 (Wednesday, January 19, 2011)]
[Rules and Regulations]
[Pages 3023-3026]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-484]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2008-0780; FRL-9251-8]


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: Final rule.

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SUMMARY: EPA is approving 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 national ambient air quality standard (NAAQS) RACT requirements 
to the Commonwealth's regulations. This action is being taken under the 
Clean Air Act (CAA).

DATES: Effective Date: This final rule is effective on February 18, 
2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2008-0780. All documents in the docket are listed in 
the http://www.regulations.gov Web site. 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 http://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 November 3, 2009 (74 FR 56754), EPA published a notice of 
proposed rulemaking (NPR) for the Commonwealth of Virginia. The formal 
SIP revision was submitted by the Commonwealth of Virginia on September 
8, 2008. The NPR proposed approval of the Virginia SIP revision that 
clarifies and recodifies provisions covering case-by-case RACT, as well 
as added the 1997 8-hour ozone standard RACT requirements to the 
Commonwealth's regulations. EPA received no comments on the proposal to 
approve Virginia's SIP revision. However, regulation 9VAC5-40-7420F. 
and G. incorrectly cross-referenced the Commonwealth's Volatile Organic 
Compounds (VOC) regulations at 9VAC5-40-7390, instead of its nitrogen 
oxides regulation at 9VAC5-40-7410. On September 27, 2010, Virginia 
submitted a correction to the regulation (Article 51 of 9VAC5-40, 
Existing Stationary Sources) that contains the requirements for making 
case-by-case RACT determinations. The SIP revision corrected the two 
typographic errors in order to correctly cross-reference regulation 
9VAC5-40-7420F. and G. to the nitrogen oxides regulation at 9VAC5-40-
7410.

II. Summary of SIP Revision

    The Commonwealth's SIP revision consists of the following changes:
    1. Addition of 9VAC5 Chapter 40, Article 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 9VAC5 Chapter 40.
    2. Administrative wording changes to regulations 9VAC5-40-250A. and 
9VAC5-40-250B.
    3. Deletion of definition of ``Reasonably available control 
technology'' in 9VAC5-40-250C. and addition of the other definitions in 
9VAC5-40-250C. to 9VAC5-40-7380 in Article 51 of 9VAC5 Chapter 40.
    4. Addition of the following definitions to regulation 9VAC5-40-
7380C.--Terms defined: ``Presumptive RACT,'' ``Theoretical potential to 
emit'' and ``Tpy.''
    5. All the definitions in regulation 9VAC5-40-311B.3--Terms 
defined, are deleted and added to 9VAC5-40-7380C. in Article 51 of 
9VAC5 Chapter 40.
    6. Repealed regulations 9VAC5-40-300--Standard for volatile organic 
compounds, 9VAC5-40-310--Standard for nitrogen oxides, and 9VAC5-40-
311--Reasonably available control technology guidelines for stationary 
sources of nitrogen oxides, in Article 4 of 9VAC5 Chapter 40 are 
replaced with 9VAC5-40-7390--Standard for volatile organic compounds 
(one-hour standard), 9VAC5-40-7410--Standard for nitrogen oxides (one-
hour ozone standard), and 9VAC5-40-7430--Presumptive reasonably 
available control technology guidelines for stationary sources of 
nitrogen oxides, respectively, in Article 51 of 9VAC5 Chapter 40.
    7. Addition of the 1997 8-hour ozone standard requirements for RACT 
in regulations 9VAC5-40-7400--Standard for volatile organic compounds 
(eight-hour ozone standard) and 9VAC5-40-7420--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

[[Page 3024]]

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 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 Clean Air Act is likewise 
unaffected by this, or any, State audit privilege or immunity law.

IV. Final Action

    EPA is approving the Virginia SIP revision that clarifies and 
recodifies provisions covering case-by-case RACT, as well as adds the 
1997 8-hour ozone standard RACT requirements to the Commonwealth's 
regulations.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under the Clean Air Act, 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 Clean Air Act. 
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 (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 Clean Air Act; 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 March 21, 2011. 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.

[[Page 3025]]

    This action, pertaining to the Commonwealth of Virginia's RACT 
provisions 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.

    Dated: December 17, 2010.
W.C. Early,
Acting, Regional Administrator, Region III.
    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
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

0
2. In Sec.  52.2420, the table in paragraph (c) is amended by:
0
a. Adding the heading ``EPA-APPROVED VIRGINIA REGULATIONS AND 
STATUTES'' to the table.
0
b. Revising the heading for Article 4 and the entry for regulation 5-
40-250.
0
c. Removing the entry for regulations 5-40-300, 5-40-310A.-E., and 5-
40-311.
0
d. Adding a category for Article 51 after entry 5-40-7360 under Article 
50 and before the existing Title entry for Article 53.
    The amendments read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

                                                     EPA-Approved Virginia Regulations and Statutes
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                                                                 State
          State citation                 Title/subject         effective     EPA approval date              Explanation [former SIP citation]
                                                                  date
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
9 VAC 5, Chapter 40..............  Existing Stationary Sources [Part IV]
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Part II..........................  Emission Standards
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Article 4........................  General Process Operations (Rule 4-4)
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
5-40-250.........................  Definitions..............     12/15/06  1/19/11 [Insert page  Removal of ``Reasonably available control technology''
                                                                            number where the      from 5-40-250C.
                                                                            document begins].
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Article 51.......................  Stationary Sources Subject to Case-by-Case Control Technology Determinations (Rule 4-51)
--------------------------------------------------------------------------------------------------------------------------------------------------------
5-40-7370........................  Applicability and             12/15/06  1/19/11 [Insert page  Added Regulation.
                                    designation of affected                 number where the
                                    facility.                               document begins].
5-40-7380........................  Definitions..............     12/15/06  1/19/11 [Insert page  Added Regulation.
                                                                            number where the
                                                                            document begins].
5-40-7390........................  Standard for volatile         12/15/06  1/19/11 [Insert page  Added Regulation.
                                    organic compounds (1-                   number where the
                                    hour ozone standard).                   document begins].
5-40-7400........................  Standard for volatile         12/15/06  1/19/11 [Insert page  Added Regulation.
                                    organic compounds (8-                   number where the
                                    hour ozone standard).                   document begins].
5-40-7410........................  Standard for nitrogen         12/15/06  1/19/11 [Insert page  Added Regulation.
                                    oxides (1-hour ozone          6/24/09   number where the
                                    standard) Subsection F.                 document begins].
5-40-7420........................  Standard for nitrogen         12/15/06  1/19/11 [Insert page  Added Regulation.
                                    oxides (8-hour ozone          6/24/09   number where the
                                    standard).                              document begins].

[[Page 3026]]

 
5-40-7430........................  Presumptive reasonably        12/15/06  1/19/11 [Insert page  Added Regulation.
                                    available control                       number where the
                                    technology guidelines                   document begins].
                                    for stationary sources
                                    of nitrogen oxides.
5-40-7440........................  Standard for visible          12/15/06  1/19/11 [Insert page  Added Regulation.
                                    emissions.                              number where the
                                                                            document begins].
5-40-7450........................  Standard for fugitive         12/15/06  1/19/11 [Insert page  Added Regulation.
                                    dust/emissions.                         number where the
                                                                            document begins].
5-40-7480........................  Compliance...............     12/15/06  1/19/11 [Insert page  Added Regulation.
                                                                            number where the
                                                                            document begins].
5-40-7490........................  Test methods and              12/15/06  1/19/11 [Insert page  Added Regulation.
                                    procedures.                             number where the
                                                                            document begins].
5-40-7500........................  Monitoring...............     12/15/06  1/19/11 [Insert page  Added Regulation.
                                                                            number where the
                                                                            document begins].
5-40-7510........................  Notification.............     12/15/06  1/19/11 [Insert page  Added Regulation.
                                                                            number where the
                                                                            document begins].
5-40-7520........................  Registration.............     12/15/06  1/19/11 [Insert page  Added Regulation.
                                                                            number where the
                                                                            document begins].
5-40-7530........................  Facility and control          12/15/06  1/19/11 [Insert page  Added Regulation.
                                    equipment maintenance or                number where the
                                    malfunction.                            document begins].
5-40-7540........................  Permits..................     12/15/06  1/19/11 [Insert page  Added Regulation
                                                                            number where the
                                                                            document begins].
 
                                                                      * * * * * * *
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[FR Doc. 2011-484 Filed 1-18-11; 8:45 am]
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