	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

	[EPA-R03-OAR-2009-0871; FRL-       ]

	Approval and Promulgation of Air Quality Implementation Plans; Virginia

	Revisions to the Definition of Volatile Organic Compound and Other
Terms

AGENCY:     Environmental Protection Agency (EPA).

ACTION:     Direct final rule.

SUMMARY:  EPA is taking direct final action to approve revisions to the
Virginia State Implementation Plan (SIP).  The revisions amend the
wording of 22 definitions, including the definition of Volatile Organic
Compound (VOC).  EPA is approving these revisions to Virginia’s
definitions 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-2009-0871 by one of the following methods:

     A.  www.regulations.gov.  Follow the on-line instructions for
submitting comments.

     B.    E-mail:  frankford.harold@epa.gov.

     C.    Mail:   EPA-R03-OAR-2009-0871, Harold A. Frankford, Air
Protection Division, Mailcode 3AP00, 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-2009-0871.  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: Harold A. Frankford, (215) 814-2108, or
by e-mail at frankford.harold@epa.gov. 

SUPPLEMENTARY INFORMATION:  

Background

Throughout this document, whenever “we,” “us,” or “our” is
used, we mean EPA.  On October 6, 2009, the Commonwealth of Virginia
submitted a formal revision to its State Implementation Plan (SIP).  The
SIP revision consists of amendments to 22 definitions listed in 9VAC5
Chapter 10 (General Definitions), Regulation 5-10-20 (Terms defined). 
The amended terms are:

Ambient air quality standard, Criteria pollutant, Dispersion technique,
Emission limitation, Emission standard, Excessive concentration, Federal
Clean Air Act, Federally enforceable, Good engineering practice, Initial
emission test, Initial performance test, Public hearing, Reference
method, Regulations for the Control and Abatement of Air Pollution, Reid
vapor pressure, Run, Standard of performance, State enforceable, These
regulations, True vapor pressure, Vapor pressure, and Volatile organic
compound.

II.	Summary of SIP Revision

Virginia amended the definition of “Volatile organic compound” to
add the organic compound
(1)1,1,1,2,2,3,4,5,5,5-decafluoro-3-methoxy-4-trifluoromethyl-pentane
(HFE-7300) to the list of excluded compounds.  The exclusion of this
compound is consistent with the list of excluded compounds found in
EPA’s definition of “Volatile organic compounds (VOC)” at 40 CFR
51.100(s)(1).

Virginia amended the 21 additional terms to be consistent with the
format of Commonwealth regulations as prescribed by the Commonwealth’s
Registrar of Regulations.  The amendments are administrative in nature
and do not alter the meaning or intent of these defined terms. 

III. 	General Information Pertaining to 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 amendments to Virginia Regulation 9VAC5-10-20
(Terms defined) as a revision to the Virginia State Implementation Plan.
 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.  

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 (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
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 [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.  Parties with objections to this direct final rule are
encouraged to file a comment in response to the parallel notice of
proposed rulemaking for this action published in the proposed rules
section of today's Federal Register, rather than file an immediate
petition for judicial review of this direct final rule, so that EPA can
withdraw this direct final rule and address the comment in the proposed

 rulemaking.  This action to approve 22 amended terms in Virginia’s
General Definitions regulation as a revision to the Virginia SIP 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.

February 1, 2010						/s/ William C. Early, Acting	

_________________                   		         
__________________________

Dated:                                				Shawn M. Garvin,

                                      				Regional Administrator,

                                      				Region III.

40 CFR part 52 is amended as follows: 

PART 52 - [AMENDED] 

1.  The authority for citation for 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 revising the
sixth entry for 5-10-20 to read as follows:

State citation     	Title/subject	State effective date	EPA approval date
Explanation [former SIP citation]

9 VAC 5

Chapter 10	General  Definitions                                         
         [Part I]

*******

5-10-20

	Terms Defined	4/2/09	[Insert Federal Register publication date] [Insert
page number where the document begins]	Revised definitions of

Ambient air quality standard, Criteria pollutant, Dispersion technique,
Emission limitation, Emission standard, Excessive concentration, Federal
Clean Air Act, Federally enforceable, Good engineering practice, Initial
emission test, Initial performance test, Public hearing, Reference
method, Regulations for the Control and Abatement of Air Pollution, Reid
vapor pressure, Run, Standard of performance, State enforceable, These
regulations, True vapor pressure, Vapor pressure, and Volatile organic
compound.

*******



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