[Federal Register Volume 70, Number 82 (Friday, April 29, 2005)]
[Rules and Regulations]
[Pages 22263-22266]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-8606]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R03-OAR-2005-VA-0003; FRL-7905-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Minor Revisions to the Fugitive Dust and Waiver Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve a revision to the 
Virginia State Implementation Plan (SIP). The revision removes oil 
application as an acceptable alternative fugitive dust emissions 
reduction method, due to an existing prohibition of oil application, on 
land, found in the Virginia statute. In addition, the revision changes 
a specific reference from ``Executive Director'' to ``Director.'' EPA 
is approving these minor revisions to Virginia's regulations in 
accordance with the requirements of the Clean Air Act.

DATES: This rule is effective on June 28, 2005 without further notice, 
unless EPA receives adverse written comment by May 31, 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-0003 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-0003, Makeba Morris, Chief, Air Quality 
Planning Branch, Mailcode 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-
0003. 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: Linda Miller, (215) 814-2068, or by e-
mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On February 2, 2004, the Virginia Department of Environmental 
Quality submitted a formal revision to its State Implementation Plan 
(SIP). The SIP revision consists of minor modifications to Virginia's 
fugitive dust and waiver regulations. These minor revisions remove 
language that conflicts with the Virginia statute and clarifies who may 
grant a waiver.

II. Summary of SIP Revision

    The SIP revision, submitted on February 2, 2004, includes 
regulatory modifications made to alleviate a conflict between statutory 
provisions and regulatory requirements. The Virginia statute (Code of 
Virginia, Section 62.1-44.34:18) prohibits the discharge of oil upon 
land. The previously SIP approved Virginia regulations concerning 
fugitive dust/emissions conflicted with the statutory prohibition. The 
revisions to 9 VAC 5-40-90 and 9 VAC 5-50-90 remove the reference to 
application of oil as a means to reduce fugitive dust emissions. The 
change does not affect the stringency of the SIP as there are several 
other alternatives to reduce fugitive emissions.
    In addition, there are several other minor editorial corrections 
made to 9 VAC 5-40-120 and 9 VAC 5-50-120. The reference to ``Executive 
Director'' is changed to ``Director, `` and the word ``methods'' is 
removed from several provisions in the regulation. These minor 
editorial changes do not alter the interpretation of the SIP approved 
regulations.
    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

[[Page 22264]]

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.

III. Final Action

    EPA is approving a revision to the SIP to remove the reference to 
application of oil as a means to reduce fugitive dust emissions in 9VAC 
5-40-90-2 and 9 VAC 5-50-90-2. EPA is publishing this rule without 
prior proposal because the Agency views this as a noncontroversial 
amendment to approve a minor change to regulations 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 28, 2005 without further 
notice unless EPA receives adverse comment by May 31, 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.

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 (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 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

[[Page 22265]]

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 28, 2005. Filing a 
petition for reconsideration by the Administrator of this final rule to 
approve minor changes to the visible emissions and fugitive dust 
regulations 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 minor 
revisions to the Virginia fugitive dust and waiver provisions, 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, Particulate 
matter.

    Dated: April 20, 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 under Chapter 40, Part II, sections 5-40-90 and 5-40-120; 
and Chapter 50, Part II, sections 5-50-90 and 5-50-120 to read as 
follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

                                                EPA-Approved Regulations and Statutes in the Virginia SIP
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                                                                                     State                                                Explanation
     State citation (9 VAC 5)                      Title/subject                   effective            EPA  approval  date               [former SIP
                                                                                      date                                                 citation]
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                                                                      * * * * * * *
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                                                    Chapter 40 Existing Stationary Sources [Part IV]
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                                                                     * * * * * * *
                                                               Part II Emission Standards
                                           Article 1 Visible Emissions and Fugitive Dust/Emissions (Rule 4-1)
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
5-40-90..........................  Standard for fugitive dust/emissions.........       2/1/03  4/29/05 Insert page number where the   ..................
                                                                                                document begins]
 
                                                                      * * * * * * *
----------------------------------
5-40-120.........................  Waiver.......................................       2/1/03  4/29/05 [Insert page number where the
                                                                                                document begins]
 
                                                                      * * * * * * *
----------------------------------
                                                 Chapter 50 New and Modified Stationary Sources [Part V]
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                     * * * * * * *
                                                               Part II Emission Standards
                             Article 1 Standards of Performance for Visible Emissions and Fugitive Dust/Emissions (Rule 5-1)
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
5-50-90..........................  Standard for fugitive dust/emissions.........       2/1/03  4/29/05 [Insert page number where the  ..................
                                                                                                document begins]
 
                                                                      * * * * * * *
----------------------------------
5-50-120.........................  Waiver.......................................       2/1/03  4/29/05 [Insert page number where the  ..................
                                                                                                document begins]
 

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[FR Doc. 05-8606 Filed 4-28-05; 8:45 am]
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