[Federal Register Volume 69, Number 109 (Monday, June 7, 2004)]
[Proposed Rules]
[Pages 31780-31782]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12775]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[VA151-5077; FRL-7671-2]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; VOC Emission Standards for AIM Coatings in the Metropolitan 
Washington, DC Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) 
revision submitted by the Commonwealth of Virginia. This revision 
pertains to the volatile organic compound (VOC) emission standards for 
architectural and industrial maintenance (AIM) coatings in the Northern 
Virginia portion of the Metropolitan Washington, DC ozone nonattainment 
area (Northern Virginia Area).

DATES: Written comments must be received on or before July 7, 2004.

ADDRESSES: Submit your comments, identified by VA151-5077 by one of the 
following methods:
    A. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    B. E-mail: [email protected].
    C. Mail: Makeba Morris, 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. VA151-5077. 
EPA's policy is that all comments received will be included in the 
public docket without change, 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 regulations.gov or e-
mail. The Federal regulations.gov Web site 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 
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.
    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; and Virginia Department of 
Environmental Quality, 629 East Main Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182, or by e-
mail at [email protected].

SUPPLEMENTARY INFORMATION: On February 23, 2004, the Commonwealth of 
Virginia submitted a formal revision to its SIP. The SIP revision 
consists of four new regulations to 9 VAC 5, Chapter 40, amendments to 
one existing article of 9 VAC 5, Chapter 40 and amendments to one 
article of 9 VAC Chapter 20.
    The new regulations are:
    (1) 9 VAC 5 Chapter 40, New Article 42--``Emission Standards for 
Portable Fuel Container Spillage in the Northern Virginia Volatile 
Organic Compound Emissions Control Area'' (``Rule 4-42''). (9 VAC 5-40-
5700 to 9 VAC 5-40-5770).

[[Page 31781]]

    (2) 9 VAC 5, Chapter 40, New Article 47--``Emission Standards for 
Solvent Metal Cleaning Operations in the Northern Virginia Volatile 
Organic Compound Emissions Control Area'' (``Rule 4-47'')--(9 VAC 5-40-
6820 to 9 VAC 5-40-6970).
    (3) 9 VAC 5, Chapter 40, New Article 48--``Emission Standards for 
Mobile Equipment Repair and Refinishing Operations in the Northern 
Virginia Volatile Organic Compound Emission Control Area'' (``Rule 4-
48'') (9 VAC 5-40-6970 to 9 VAC 5-40-7110).
    (4) 9 VAC 5, Chapter 40, New Article 49--``Emission Standards for 
Architectural and Industrial Maintenance Coatings in the Northern 
Virginia Volatile Organic Compound Emissions Control Area'' (``Rule 4-
49'') (9 VAC 5-40-7120 to 9 VAC 5-40-7230).
    The February 23, 2004 submittal, also included amendments to 9 VAC 
5-20-21 ``Documents incorporated by reference'' to incorporate by 
reference additional test methods and procedures needed for Rule 4-42 
or Rule 4-49, and, also amendments to section 9 VAC 5-40-3260 of 
Article 24 ``Emission Standards For Solvent Metal Cleaning Operations 
Using Non-Halogenated Solvents'' (``Rule 4-24'').
    This action concerns only Rule 4-49 of the February 23, 2004 SIP 
revision and the amendments and additions to 9 VAC 5-20-21.E.1.a.(7), 
E.4.a.(12) through (17), E.10, E.11, and E.13. The remaining portions 
of the February 23, 2004 SIP revision submittal, which include Rule 4-
42, Rule 4-47, Rule 4-48, the amendment to 9 VAC 5-40-3260, and the 
addition of subdivision E 12 to 9 VAC 5-20-21, will be the subject of 
separate rulemaking actions.

I. Background

    On January 24, 2003, EPA made a finding that the Metropolitan 
Washington, DC ozone nonattainment area (DC Area) failed to attain the 
ozone standard by November 15, 1999, and reclassified the area from 
``serious'' to ``severe'' for one-hour ozone. As a severe nonattainment 
area, the DC Area must now meet the requirements of section 182(d) of 
the CAA, and attain the one-hour ozone standard by November 15, 2005. 
As a result of the reclassification of the DC Area to severe 
nonattainment, the Northern Virginia Area must implement additional 
measures for failure to attain the ozone standard and submit SIP 
revisions showing ROP of three percent reductions for each year after 
1999 until the new statutory attainment date of November 15, 2005, a 
revised attainment demonstration and revisions to the contingency plan.
    As part of Virginia's strategy to meet its portion of emission 
reductions keyed to the post-1999 ROPs, the 2005 attainment 
demonstration, and/or the contingency plan, the state adopted new 
measures to control volatile organic compound (VOC) emissions from four 
additional source categories, including a regulation to control 
emissions from AIM coatings. The standards and requirements contained 
in Virginia's AIM rule are based on the Ozone Transport Commission 
(OTC) model rule. The OTC developed control measures into model rules 
for a number of source categories and estimated emission reduction 
benefits from implementing those model rules. The OTC AIM coatings 
model rule was based on the existing rules developed by the California 
Air Resources Board, which were analyzed and modified by the OTC 
workgroup to address VOC reduction needs in the Ozone Transport Region 
(OTR).

II. Summary of SIP Revision

    The Northern Virginia Area includes the counties of Arlington, 
Fairfax, Loudon, Prince William; and cities of Alexandria, Fairfax, 
Falls Church, Manassas and Manassas Park.
    The Virginia AIM Rule applies to any person who supplies, sells, 
offers for sale, or manufactures any AIM coating for the use in 
Northern Virginia Area; as well as a person who applies or solicits the 
application of any AIM coating within the Northern Virginia Area. The 
rule does not apply to the following: (1) Any AIM coating that is sold 
or manufactured for use outside of the Northern Virginia Area, or for 
shipment to other manufacturers for reformulation or repackaging; (2) 
any aerosol coating product; or (3) any architectural coating that is 
sold in a container with a volume of one liter (1.057 quarts) or less. 
The rule sets specific VOC content limits, in grams per liter, for AIM 
coating categories with a compliance date of January 1, 2005. The rule 
contains administrative requirements for labeling and reporting. There 
are a number of test methods that would be used to demonstrate 
compliance with this rule. Some of these test methods include those 
promulgated by EPA and published by the South Coast and Bay Area Air 
Quality Management Districts of California, as well as the American 
Society for Testing and Materials. The test methods used to test 
coatings must be the most current approved method at the time testing 
is performed.

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 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

[[Page 31782]]

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 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.

III. Proposed Action

    EPA is proposing to approve the Virginia SIP revision submitted on 
February 23, 2004, for VOC emission standards for AIM coatings in the 
Northern Virginia Area (Rule 4-49), and also the amendments and 
additions to 9 VAC 5-20-21. EPA is soliciting public comments on the 
issues discussed in this document. These comments will be considered 
before taking final action.

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. For this reason, this action is also not subject to Executive 
Order 13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)). 
This action merely proposes to approve state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this proposed 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 proposes to approve 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). This proposed rule also does not have a 
substantial direct effect on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it 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 proposes to approve 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 
proposed 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 proposed 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 proposed rule pertaining to Virginia's AIM 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.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Intergovernmental relations, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

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

    Dated: May 27, 2004.
James W. Newsom,
Acting Regional Administrator, Region III.
[FR Doc. 04-12775 Filed 6-4-04; 8:45 am]
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