[Federal Register Volume 70, Number 80 (Wednesday, April 27, 2005)]
[Rules and Regulations]
[Pages 21625-21628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-8437]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R03-OAR-2005-VA-0002; FRL-7904-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Revision Establishing the Western Virginia VOC and NOX 
Emissions Control Area, and Providing the Enabling Authority for NOX 
RACT Determinations in the Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: Environmental Protection Agency (EPA) is taking direct final 
action to approve a revision to the Commonwealth of Virginia State 
Implementation Plan (SIP) establishing a new volatile organic compound 
(VOC) and nitrogen oxide (NOX) emissions control area. This 
new area, entitled, the Western Virginia Emissions Control Area, 
consists of the City of Winchester and Frederick County, Roanoke 
County, Botetourt County, Roanoke City, and Salem City. EPA is also 
approving a revision to provide the enabling authority to implement 
NOX Reasonably Available Control Technology (RACT) in the 
affected areas. EPA is approving this revision in accordance with the 
requirements of the Clean Air Act (CAA).

DATES: This rule is effective on June 27, 2005 without further notice, 
unless EPA receives adverse written comment by May 27, 2005. 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 Regional Material in 
EDocket (RME) ID Number R03-OAR-2005-VA-0002 by one of the following 
methods:
    A. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    B. Agency Web site: http://www.docket.epa.gov/rmepub/ RME, EPA's 
electronic public docket and comment system, is EPA's preferred method 
for receiving comments. Follow the on-line instructions for submitting 
comments.
    C. E-mail: [email protected].
    D. Mail: R03-OAR-2005-VA-0002, David Campbell, Chief, Air Quality 
Planning Branch, 3AP21, U.S. Environmental Protection Agency, Region 
III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
    E. 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 RME ID No. R03-OAR-2005-VA-
0002 EPA's policy is that all comments received will be included in the 
public docket without change, and may be made available online at 
http://www.docket.epa.gov/rmepub/, 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 RME, regulations.gov 
or e-mail. The EPA RME and the Federal regulations.gov websites are 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 RME or 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 
RME index at http://www.docket.epa.gov/rmepub/. 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 RME 
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: Ellen Wentworth, (215) 814-2034, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Prior to the final establishment of the 8-hour ozone nonattainment 
areas, EPA developed a program to allow potential nonattainment areas 
to voluntarily adopt local emission control programs to avoid air 
quality violations and mandated nonattainment area controls. Areas with 
air quality meeting the one-hour ozone standard were eligible to 
participate. In order to participate, state and local governments and 
EPA had to develop and sign an Early Action Compact (EAC) agreement 
with EPA. This agreement outlined the implementation procedures for the 
EAC program. As part of the EAC process, state and local communities 
are required to adopt and implement measures to reduce ozone precursor 
pollutants. In addition, the EAC program requires the preparation of an 
attainment demonstration.
    Several localities in the Winchester and Roanoke areas of Virginia 
were eligible to participate in the EAC program. The areas that signed 
an EAC are the City of Winchester and Frederick County, which comprise 
the Northern Shenandoah Valley EAC, and the cities of Roanoke and 
Salem, and the counties of Roanoke and Botetourt, which comprise the 
Roanoke EAC.
    In order to support this effort, the Commonwealth has elected to 
expand its pre-existing list of emission control areas to include the 
EAC participating localities and to expand its NOX RACT 
regulation to the new emission control area.

II. Summary of SIP Revision

    On December 22, 2004, and supplemented on February 24, 2005, the 
Commonwealth of Virginia submitted a formal revision to its SIP. The 
SIP revision amends the Virginia Code at 9 VAC 5-20-206 to expand the 
VOC and NOX emission control areas to include the Western 
Virginia Emissions Control Area. This area includes the counties of 
Botetourt, Frederick, and Roanoke, and the cities of Roanoke, Salem, 
and Winchester. The revision also authorizes the implementation of 
NOX RACT in the Western Virginia Emissions Control Area.
    This SIP revision also includes several amendments to various

[[Page 21626]]

regulations in 9 VAC 5-40 which are intended to clarify certain 
provisions. A more detailed summary of the changes may be found in the 
technical support document (TSD) prepared 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 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, 
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.

IV. Final Action

    EPA is approving a revision to the Commonwealth of Virginia SIP 
consisting of a regulation establishing the Western Virginia Emissions 
Control Area, and providing the enabling authority for NOX 
RACT determinations in the affected areas. The regulations are 
necessary in order to implement the control measures and achieve the 
emission reductions in the plans for the Roanoke and Northern 
Shenandoah Valley EAC areas.
    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 June 27, 2005 without further 
notice unless EPA receives adverse comment by May 27, 2005. 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 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 (Public Law 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

[[Page 21627]]

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 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 June 27, 2005. Filing a 
petition for reconsideration by the Administrator of this final rule 
approving the expansion of the VOC emission standards to the Western 
Virginia Emissions Control Area, and providing the enabling authority 
for NOX RACT determinations in the affected areas, 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 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, Nitrogen dioxide, 
Ozone, Reporting and recordkeeping requirements, Volatile organic 
compounds.

    Dated: April 19, 2005.
Donald S. Welsh,
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 Sec.  52.2420, the table in paragraph (c) is amended by revising 
the entries for Chapter 20 and Chapter 40 to read as follows:


Sec.  52.2420  Identification of plan.

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

                            EPA-Approved Regulations and Statutes in the Virginia SIP
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                                                            State
     State citation (9 VAC 5)          Title/subject      effective     EPA approval date   Explanation  [former
                                                             date                               SIP citation]
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                                                  * * * * * * *
----------------------------------
                                     Chapter 20 General Provisions (Part II)
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                                                  * * * * * * *
5-20-206.........................  Volatile Organic          3/24/04  4/27/05 [Insert page
                                    Compound and                       number where the
                                    Nitrogen Oxides                    document begins].
                                    Emissions Control
                                    Areas.
 
                                                  * * * * * * *
----------------------------------
                                     Chapter 40 Existing Stationary Sources
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                                                  * * * * * * *
----------------------------------
                                           Part II Emission Standards
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                                                  * * * * * * *
----------------------------------
                                 Article 4 General Process Operations (Rule 4-4)
----------------------------------------------------------------------------------------------------------------
5-40-240.........................  Applicability and         3/24/04  4/27/05 [Insert page
                                    Designation of                     number where the
                                    Affected Facility.                 document begins].
 

[[Page 21628]]

 
                                                  * * * * * * *
5-40-310A-E......................  Standard for              3/24/04  4/27/05 [Insert page
                                    Nitrogen Oxides.                   number where the
                                                                       document begins].
 
                                                  * * * * * * *
----------------------------------
                     Article 37 Petroleum Liquid Storage and Transfer Operations (Rule 4-3)
----------------------------------------------------------------------------------------------------------------
5-40-5200........................  Applicability and         3/24/04  4/27/05 [Insert page
                                    Designation of                     number where the
                                    Affected Facility.                 document begins].
 
                                                  * * * * * * *
5-40-5220........................  Standard for              3/24/04  4/27/05 [Insert page
                                    Volatile Organic                   number where the
                                    Compounds.                         document begins].
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[FR Doc. 05-8437 Filed 4-26-05; 8:45 am]
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