[Federal Register Volume 69, Number 110 (Tuesday, June 8, 2004)]
[Rules and Regulations]
[Pages 31893-31897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12769]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[VA 148-5078a; FRL-7671-1]


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

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). Specifically, 
EPA is approving new emission standards for portable fuel containers or 
spouts sold, supplied, offered for sale, or manufactured for sale in 
the Northern Virginia portion of the Metropolitan Washington, DC ozone 
nonattainment area (Northern Virginia area). EPA is approving the new 
portable fuel container standards to reduce emissions of volatile 
organic compounds (VOC) in accordance with the requirements of the 
Clean Air Act (CAA).

DATES: This rule is effective on August 9, 2004 without further notice, 
unless EPA receives adverse written comment by July 8, 2004. 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 VA148-5078 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].

[[Page 31894]]

    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. VA148-5078. 
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 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 
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 the Virginia Department 
of Environmental Quality, 629 East Main Street, Richmond, Virginia 
23219.

FOR FURTHER INFORMATION CONTACT: Marilyn Powers, (215) 814-2308, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On January 24, 2003 (68 FR 3410), EPA issued a determination that 
the Metropolitan Washington, DC ozone nonattainment area (DC Area) 
failed to attain the ozone standard by the statutory date of 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 to severe nonattainment, the states that comprise the 
DC Area (Maryland, Virginia, and District of Columbia) must implement 
additional control measures and submit SIP revisions for post-1999 Rate 
of Progress Plans, revisions to Contingency Plans, and revisions to the 
Attainment demonstration.
    As part of Virginia's strategy to meet its portion of emission 
reduction 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 portable fuel containers.
    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).
(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-Halogentated Solvents'' (``Rule 4-24'').
    This action concerns only Rule 4-42 and the addition of paragraph E 
12 to 9 VAC 5-20-21 of the February 23, 2004 SIP revision. The other 
portions of the February 23, 2004 SIP revision submittal (Rule 4-47, 
Rule 4-48, Rule 4-49, the amendment to 9 VAC 5-40-3260, and the other 
amendments and additions to 9 VAC 5-20-21) will be the subject of 
separate rulemaking actions.

II. Summary of SIP Revision

    The standards and requirements contained in Virginia's portable 
fuel container 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 Portable Fuel Container 
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).
    The provisions of Virginia's Rule 4-42 will apply to any source or 
person who sells, supplies, offers for sale, or manufactures for sale 
portable fuel containers or spouts in the Northern Virginia counties of 
Arlington, Fairfax, Loudoun, Prince William, and Stafford counties; and 
the cities of Alexandria, Fairfax, Falls Church, Manassas, and Manassas 
Park. Affected persons must comply by January 1, 2005. The rule does 
not apply to any portable fuel container or spout manufactured for 
shipment, sale and use outside of the Northern Virginia area.
    This regulation requires each portable fuel container or spout sold 
in the Northern Virginia area to meet the following requirements: (1) 
Have an automatic shut-off and closure device; (2) contain one opening 
for both filling and pouring; (3) meet minimal fuel flow rate based on 
nominal capacity; (4) meet a permeation standard, and (5) have a 
manufacturer's warranty against defects. The regulation includes 
exemptions, standards, testing procedures, recordkeeping, and 
administrative requirements. To demonstrate compliance, Virginia has 
added test methods and procedures to the

[[Page 31895]]

documents incorporated by reference in its General Provisions, 9 VAC 5-
20.

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, 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.

IV. Final Action

    EPA is approving a revision to the Commonwealth of Virginia SIP to 
establish regulations for the control of VOC emissions from portable 
fuel containers (Rule 4-42 in 9 VAC 5-40) and the associated test 
methods and procedures incorporated by reference in the General 
Provisions (9 VAC 5-20-21). These regulations will apply in the 
Northern Virginia area. Implementation of this VOC control measure 
strengthens the Virginia SIP, and results in emission reductions that 
will help the DC area meet the additional requirements associated with 
its reclassification to a severe nonattainment area for one-hour ozone. 
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 August 8, 2004 without further notice 
unless EPA receives adverse comment by July 8, 2004. 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.

IV. Statutory and Executive Order Reviews

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. 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 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). This rule also does not 
have tribal implications because it will 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). 
This action also does not have Federalism implications because it does 
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). 
This action merely approves a state rule implementing a Federal 
standard, and does not alter the

[[Page 31896]]

relationship or the distribution of power and responsibilities 
established in the Clean Air Act. This rule also is not subject to 
Executive Order 13045 ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (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. 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 August 9, 2004. 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 to approve new VOC standards for portable 
fuel containers manufactured, sold, or supplied for use in the Northern 
Virginia Area 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, Ozone, Reporting 
and recordkeeping requirements, Volatile organic compounds.

    Dated: May 27, 2004.
James W. Newsom,
Acting Regional Administrator, Region III.


0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart VV--Virginia

0
2. In Section 52.2420, the table in paragraph (c) is amended by adding 
an entry to 9 VAC 5, Chapter 40 Part II to read as follows :


Sec.  52.2420  Identification of plan.

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

                                  EPA-Approved Regulations in the Virginia SIP
----------------------------------------------------------------------------------------------------------------
                                                      State
   State citation (9 VAC 5)       Title/subject     effective   EPA approval date     Explanation (former SIP
                                                       date                                   section)
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Chapter 40....................                             Existing Stationary Sources
-------------------------------
 
                                                 * * * * * * *
                                           Part II Emission Standards
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Article 42....................       Emissions Standards for Portable Fuel Container Spillage in the Northern
                                      Virginia Volatile Organic Compound Emissions Control Area (Rule 4-42)
-------------------------------
5-40-5700.....................  Applicability....    3/24/2004  June 8, 2004
                                                                 [Federal
                                                                 Register page
                                                                 citation].
5-40-5710.....................  Definitions......    3/24/2004  June 8, 2004
                                                                 [Federal
                                                                 Register page
                                                                 citation].
5-40-5720.....................  Standard for         3/24/2004  June 8, 2004
                                 volatile organic                [Federal
                                 compounds.                      Register page
                                                                 citation].
5-40-5730.....................  Administrative       3/24/2004  June 8, 2004
                                 requirements.                   [Federal
                                                                 Register page
                                                                 citation].
5-40-5740.....................  Compliance.......    3/24/2004  June 8, 2004
                                                                 [Federal
                                                                 Register page
                                                                 citation].
5-40-5750.....................  Compliance           3/24/2004  June 8, 2004
                                 Schedules.                      [Federal
                                                                 Register page
                                                                 citation].
5-40-5760.....................  Test methods and     3/24/2004  June 8, 2004
                                 procedures.                     [Federal
                                                                 Register page
                                                                 citation].
5-40-5770.....................  Notification,        3/24/2004  June 8, 2004
                                 records and                     [Federal
                                 reporting.                      Register page
                                                                 citation].
-------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


[[Page 31897]]

* * * * *

0
3. Section 52.2423 is amended by adding paragraph (s) to read as 
follows:


Sec.  52.2423  Approval status.

* * * * *
    (s) EPA approves as part of the Virginia State Implementation Plan 
the references to the documents listed in 9 VAC 5 Chapter 20, Section 
5-20-21, paragraph E.12 of the Virginia Regulations for the Control and 
Abatement of Air Pollution submitted by the Virginia Department of 
Environmental Quality on February 23, 2004.

[FR Doc. 04-12769 Filed 6-7-04; 8:45 am]
BILLING CODE 6560-50-P