	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

	[EPA-R03-OAR-2009-0520; FRL-        ]

Approval and Promulgation of Air Quality Implementation Plans; Virginia;
Opacity Variance for Rocket Testing Operations Atlantic Research
Corporation’s Orange County Facility

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
pertain to the addition of 9 VAC 5 Chapter 220, “Variance for Rocket
Motor Test Operations at Atlantic Research Corporation Orange County
Facility” and an opacity variance for the rocket motor test operations
at Aerojet Corporation’s Orange County Facility, in lieu of the
opacity limits established in the Virginia SIP.  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-2009-0520 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-2009-0520, 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-2009-0520.  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.  Background

On January 26, 2004, the Commonwealth of Virginia submitted an opacity
variance for the rocket motor test operations at Aerojet Corporation’s
Orange County Facility as a revision to its SIP.  The variance is
included in Title 9 of the Virginia Administrative Code (9 VAC Chapter
220).  Virginia established a variance that requires the facility to
limit total particulate matter (PM) emissions from its rocket motor test
operations to 714 pounds per hour (9 VAC 5-220-30.B), in lieu of opacity
limits set forth in regulation 9 VAC 5-50-80.

On February 19, 2009, Virginia Department of Environmental Quality
(VADEQ) submitted additional information to support the variance for the
rocket motor test operations, which included a comprehensive technical
support document (TSD) that provides additional air dispersion modeling
information.

II.   Description of SIP Revision

This SIP revision consists of the addition of the “Variance for Rocket
Motor Test Operations at Atlantic Research Corporation Orange County
Facility” (9 VAC 5 Chapter 220) in order to add regulations 9 VAC
5-220-10 - Applicability and designation of affected facility, 9 VAC
5-220-20 - Definitions, 9 VAC 5-220-30 - Applicability of standard for
visible emissions and standard for particulate matter, 9 VAC 5-220-40 -
Compliance determination, monitoring, recordkeeping, and reporting, 9
VAC 5-220-50 - Transfer of ownership and 9 VAC 5-220-60 - Applicability
of future regulation amendments.  

The addition of the “Variance for Rocket Motor Test Operations at
Atlantic Research Corporation Orange County Facility” (9 VAC 5 Chapter
220) pertains to Atlantic Research Corporation Orange County Facility in
terms of applicability and designation, definitions, compliance
determination, monitoring, recordkeeping, and recording, transfer of
ownership, and applicability of future regulation amendments.  This
revision does not change the substance of the SIP and consequently, does
not interfere with the timely attainment or progress towards attainment
of a national ambient air quality standard (NAAQS), nor interfere with
any other provision of the CAA, 42 U.S.C. 7401 et seq.

The addition of regulation 9 VAC 5-220-30 - “Applicability of standard
for visible emissions and standard for particulate matter” is to
establish PM emission limits for Aerojet Corporation’s rocket test
operations, in lieu of opacity standards established in regulation 9 VAC
5-50-80.  As part of this SIP revision, VADEQ included a modeling
analysis titled “Technical Support Documentation for Opacity Variance
for Rocket Test Facility” which demonstrates that emissions from
Aerojet Corporation’s Orange County Facility will not cause or
significantly contribute to violations of the PM NAAQS.  Further details
of VADEQ and EPA’s modeling analysis can be found in EPA’s TSD for
this rulemaking.

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 Virginia’s SIP revision to add the “Variance for
Rocket Motor Test Operations at Atlantic Research Corporation Orange
County Facility” (9 VAC 5 Chapter 220), which includes regulation 9
VAC 5-220-30 - “Applicability of standard for visible emissions and
standard for particulate matter” to establish PM emission limits for
Aerojet Corporation’s rocket test operations in lieu of opacity
standards established in regulation 9 VAC 5-50-80.  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 

A.   General Requirements 

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 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 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 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 Commonwealth of Virginia’s opacity
variance for rocket testing operations at Atlantic Research
Corporation’s Orange County Facility, 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, Particulate Matter, Reporting and
recordkeeping requirements, Sulfur oxides.

                                                                        
              James W. Newsom, Acting

                                                                        
              Regional Administrator

__August 26, 2009_____                                           
____________________________

Dated:                             		   		William C. Early,	

                                                                 	
Acting 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 adding an
entry for Chapter 220 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]

*     *     *     *     *    *     *

9 VAC 5

Chapter 220	Opacity Variance for Rocket Testing Operations Atlantic
Research Corporation’s Orange County Facility

5-220-10	Applicability and designation of 

affected facility 	12/1/02	[Insert Federal Register publication date]
[Insert page number where the document begins]

	5-220-20	Definitions 	12/1/02	[Insert Federal Register publication
date] [Insert page number where the document begins]

	5-220-30	Applicability of standard for visible emissions and standard
for particulate matter 	12/1/02	[Insert Federal Register publication
date] [Insert page number where the document begins]

	5-220-40	Compliance determination, monitoring, recordkeeping, and
reporting 	12/1/02	[Insert Federal Register publication date] [Insert
page number where the document begins]

	5-220-50	Transfer of ownership 	12/1/02	[Insert Federal Register
publication date] [Insert page number where the document begins]

	5-220-60	Applicability of future regulations 	12/1/02	[Insert Federal
Register publication date] [Insert page number where the document
begins]

	*     *     *     *     *    *     *



*    *     *     *      *

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