[Federal Register Volume 66, Number 105 (Thursday, May 31, 2001)]
[Rules and Regulations]
[Pages 29495-29498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-13500]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[VA107-5049; FRL-6987-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Clarifying Revisions to 9 VAC 5 Chapter 40 Fuel Burning 
Equipment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving revisions to the Virginia State 
Implementation Plan (SIP) regarding existing stationary sources. The 
revisions concern provisions covering fuel burning equipment. The 
intent of the revisions is to clarify the applicability of the 
regulation and to indicate clearly that permits may be needed for the 
operation of a facility. New definitions to reflect the clarification 
along with some additional minor changes are included in the revisions. 
These revisions, submitted by the Commonwealth of Virginia's Department 
of Environmental Quality (VADEQ), are being approved in accordance with 
the Clean Air Act.

DATES: This rule is effective on July 30, 2001 without further notice, 
unless EPA receives adverse written comment by July 2, 2001. 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: Written comments should be mailed to David L. Arnold, Chief, 
Air Quality Planning and Information Services Branch, Mailcode 3AP21, 
U.S. Environmental Protection Agency, Region III, 1650 Arch Street,

[[Page 29496]]

Philadelphia, Pennsylvania 19103. Copies of the documents relevant to 
this action are available 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; 
Virginia Department of Environmental Quality, 629 East Main Street, 
Richmond, Virginia, 23219.

FOR FURTHER INFORMATION CONTACT: Ruth E. Knapp, (215) 814-2191, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us'' or ``our'' are used we mean EPA.

Table of Contents

I. What is the EPA Approving?
II. What are the Provisions of the Revised Regulation?
III. What Are the Environmental Effects of this Action?
IV. Special Provisions Regarding Virginia.
V. EPA Rulemaking Action.
VI. Administrative Requirements.

I. What Is EPA Approving?

    We are approving, as a SIP revision, changes made to the 
Commonwealth of Virginia's regulations for fuel burning equipment. The 
SIP revisions consist of new definitions and additional wording to 
clarify that the fuel burning regulations under the Commonwealth's 
regulations found at 9 VAC 5-40-880, 9 VAC 8-40-890, 9 VAC 5-40-900, 9 
VAC 5-40-940, and 9 VAC 5-40-1040 apply to stationary combustion 
turbines but not to stationary internal combustion engines. Definitions 
for each of these types of equipment have been added to 9 VAC 5-40-890, 
Definitions. Some minor additional changes in wording are also included 
in the revisions along with additional clarification of when permits 
may be needed at a facility.

II. What Are the Provisions of the Revised Regulation?

    The revisions clarify which sources are covered under the Fuel 
Burning Equipment Rule. The revisions indicate that the provisions of 9 
VAC 5 Chapter 40 related to Emission Standards for Fuel Burning 
Equipment do not apply to stationary internal combustion engines. The 
definition of fuel burning equipment has been revised to indicate 
clearly that stationary combustion turbines are considered to be fuel 
burning equipment. Two new definitions have been added to the rule at 9 
VAC 5-40-890. One defines a ``stationary combustion turbine'' as any 
air breathing internal combustion engine consisting of an air 
compressor, combustion chamber, and a turbine wheel. The definition of 
a ``stationary internal combustion engine'' is an engine in which fuel 
is burned within a machine in which energy is converted directly into 
mechanical motion or work. The energy is used directly for the 
production of power, locomotion or work. Internal combustion engines 
include, but are not limited to, diesel engines, gasoline engines, and 
diesel pumps. In addition to these clarifications of applicability, 9 
VAC 5-40-1040 has been revised to indicate that permits may be needed 
for the operation of a facility.

III. What Are the Environmental Effects of This Action?

    The changes regarding the definition of fuel burning equipment only 
clarify the current interpretation of the regulations. They do not make 
the regulations any more or less stringent. The revisions, therefore, 
have no direct environmental effects in and of themselves. They do 
provide the public and industry with a better understanding of the type 
of equipment regulated under this rule.

IV. Special Provisions Regarding 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, 1997, 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, 
1997 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 Clean Air Act, 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.

[[Page 29497]]

V. EPA Rulemaking Action

    We are approving revisions to the Virginia SIP subumitted by the 
Virginia Department of Environmental Quality on March 27, 2000. The 
revisions to 9 VAC 5 Chapter 40 pertaining to Fuel Burning Equipment 
clarify the applicability to stationary combustion turbines and also 
clarifies when permits may be needed. We are publishing this action 
without prior proposal because we view this as a noncontroversial 
revision and anticipate no adverse comments. However, in the ``Proposed 
Rules'' section of today's Federal Register, we are 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 
July 30, 2001 without further notice unless we receive adverse comment 
by July 2, 2001. Should we receive such comments, we will publish a 
timely withdrawal in the Federal Register informing the public that the 
rule will not take effect. We will address all public comments in a 
subsequent final rule based on the proposed rule. We will not institute 
a second comment period on this action. Any parties interested in 
commenting on this action must do so at this time.

VI. Administrative Requirements

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. This action 
merely approves state law as meeting federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it 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). For the same reason, this 
rule also does not significantly or uniquely affect the communities of 
tribal governments, as specified by Executive Order 13084 (63 FR 27655, 
May 10, 1998). This rule will not have substantial direct effects on 
the States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999), because it merely approves a state rule 
implementing a federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 (62 FR 
19885, April 23, 1997), because it is not economically significant. In 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the Clean Air Act. In this 
context, in the absence of a prior existing requirement for the State 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this rule, EPA has taken the necessary steps to eliminate drafting 
errors and ambiguity, minimize potential litigation, and provide a 
clear legal standard for affected conduct. EPA has complied with 
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the 
takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings' issued under the executive order. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).

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 rule 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. This rule 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 July 30, 2001. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule 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 regarding revisions to the Virginia Fuel 
Burning Equipment Rule 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, Intergovernmental 
relations, Particulate matter, Reporting and recordkeeping 
requirements.

    Dated: May 17, 2001.
Thomas C. Voltaggio,
Acting Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

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

Subpart VV--Virginia

    2. In Sec. 52.2420, the entries for 9 VAC 5 Chapter 40, subsections 
5-40-880, 5-40-890, 5-40-900, 5-40-940 and 5-40-1040 in the ``EPA-
Approved Regulations in the Virginia SIP'' table in paragraph (c) are 
revised to read as follows:


Sec. 52.2420  Identification of plan.

* * * * *
    (c) EPA approved regulations.

[[Page 29498]]



                                  EPA-Approved Regulations in the Virginia SIP
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  State citation (9                                                    EPA approval     Explanation (former SIP
       VAC 5)           Title/subject       State effective date           date                citation)
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*                  *                  *                  *                  *                  *
                                                        *
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                                     Chapter 40--Existing Stationary Sources
----------------------------------------------------------------------------------------------------------------
5-40-880              Applicability and  April 1, 1999               5/31/01 66 FR
                       designation of                                 29498
                       affected
                       facility.
5-40-890              Definitions......  April 1, 1999               5/31/01 66 FR
                                                                      29498
5-40-900              Standard for       April 1, 1999               5/31/01 66 FR
                       particular                                     29498
                       matter.
 
*                  *                  *                  *                  *                  *
                                                        *
5-40-940              Standard for       April 1, 1999               5/31/01 66 FR
                       visible                                        29498
                       emissions.
 
*                  *                  *                  *                  *                  *
 
5-40-1040             Permits..........  April 1, 1999               5/31/01 66 FR
                                                                      29498
 
*                  *                  *                  *                  *                  *
                                                        *
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    (d) *  *  *

[FR Doc. 01-13500 Filed 5-30-01; 8:45 am]
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