[Federal Register Volume 70, Number 117 (Monday, June 20, 2005)]
[Rules and Regulations]
[Pages 35379-35382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-12078]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R03-OAR-2005-VA-0008; FRL-7925-6]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; VOC Emission Standards in the Hampton Roads VOC Emissions 
Control Area

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 
Commonwealth of Virginia State Implementation Plan (SIP). This revision 
consists of the removal of the exemption from volatile organic compound 
(VOC) emission standards for sources located in the Hampton Roads VOC 
Emissions Control Area localities of James City County, York County, 
Poquoson City, and Williamsburg City. This action is necessary in order 
for Virginia to meet its obligation to implement contingency measures 
as a result of the area's violation of the 1-hour ozone standard. This 
action is being taken in accordance with the requirements of the Clean 
Air Act.

DATES: This rule is effective on August 19, 2005 without further 
notice, unless EPA receives adverse written comment by July 20, 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-0008, 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-0008, David Campbell, 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-
0008. 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

    On February 22, 2005, the Commonwealth of Virginia submitted a 
formal revision to its SIP. This SIP revision consists of the removal 
of the exemption from VOC emission standards for sources located in the 
Hampton Roads VOC Emissions Control Area localities of James City 
County, York County, Poquoson City, and Williamsburg City. Sources of 
VOC emissions in these localities will now be required to meet the 
emission standards set forth in Chapter 40 of the Regulations for 
Control and Abatement of Air Pollution. This action is necessary in 
order for Virginia to implement contingency measures specified in the 
maintenance plan established for Hampton Roads. The Hampton Roads Area 
was designated attainment for the 1-hour ozone standard on June 26, 
1997 (62 FR 34408), but subsequently violated the standard between 1999 
and 2001.

II. Summary of SIP Revision

    The Hampton Roads Area, consisting of the localities of James City 
County, Poquoson City, York County, Portsmouth City, Chesapeake City, 
Suffolk City, Hampton City, Virginia Beach City, Newport News City, 
Williamsburg City, and Norfolk City, was classified as a marginal 
nonattainment area in 1991 (56 FR 56694). The Area was able to achieve 
the 1-hour ozone standard and was designated attainment for the 1-hour 
standard on June 26, 1997 (62 FR 34408). The maintenance plan submitted 
and approved at the time of the redesignation included specific 
strategies aimed at maintaining air quality and contingency measures in 
the event the Area measured ozone concentrations above allowable 
levels. One of the potential measures available was to remove the 
exemption to meet existing VOC standards provided to sources located in 
the Hampton Roads Area localities of James City County, York County, 
Poquoson City, and Williamsburg City. Since the initial promulgation of 
the VOC emissions control areas in 1979, these four localities had been 
exempt from meeting the VOC emission standards in 9 VAC-5-40-10, et 
seq. At the time, they were considered to be too rural to make a 
significant contribution to air pollution in the area. However, due to 
growth in the area, these localities can no longer be considered rural.

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    As stated previously, between 1999 and 2001, Hampton Roads recorded 
four exceedances of the 1-hour ozone standard. As a result, Virginia is 
required to implement the contingency measures specified in the 
maintenance plan established for Hampton Roads. One of these measures 
is the removal of the exemption provided to four localities in the area 
from existing requirements for limiting VOC emissions. Removal of the 
exemption will allow Virginia to implement contingency measures 
required by the maintenance plan with the expectation that the 
additional VOC reductions provided will ensure that the Area continues 
to achieve the 1-hour ozone standard.
    Chapter 40 of the Regulations for the Control and Abatement of Air 
Pollution contains a number of regulations with VOC emission standards. 
The geographic applicability of these rules is defined by establishing 
VOC emissions control areas in a list located in 9 VAC 5-20-206 of 
Chapter 20. This list currently exempts existing stationary sources 
located in James City County, York County, Poquoson City, and 
Williamsburg City from the applicable VOC standards as set forth in 
several articles in Chapter 40. This SIP revision amends 9 VAC 5-20-
206.1.c. by removing the exemption from the VOC emission standards in 
Chapter 40 for the four aforementioned localities. These four 
localities will now be subject to the VOC standards for existing 
sources as is the case in the other jurisdictions within the Hampton 
Roads VOC Emissions Control Area. Existing sources of VOC emissions in 
these localities will now be required to meet the emissions standards 
set forth in Chapter 40 of the regulations for the control of air 
pollution.

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 the SIP revision submitted by the Commonwealth of 
Virginia on February 22, 2005, amending 9 VAC 5-20-206.1.c. by removing 
the exemption provided to the counties of James City and York, and the 
cities of Poquoson and Williamsburg, located in the Hampton Roads VOC 
Emissions Control Area, from existing VOC emission standards. Removal 
of this exemption will allow Virginia to implement a contingency 
measure required by its maintenance plan to address a violation of the 
1-hour ozone standard.
    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 19, 2005 without further 
notice unless EPA receives adverse comment by July 20, 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.

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

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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 requirement, 
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 August 19, 2005. 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, removing the VOC emission standards 
exemption for four localities located in the Hampton Roads Emissions 
Control 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: June 13, 2005.
Thomas Voltaggio,
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 for Chapter 20, section 5-20-206 after the existing entry for 
5-20-206 to read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

                                 EPA-Approved Virginia Regulations and Statutes
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                                                                 State         EPA
    State citation  (9 VAC 5)            Title/subject         effective     approval    Explanation [former SIP
                                                                  date         date             citation]
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                                                  * * * * * * *
----------------------------------
                                    CHAPTER 20 General Provisions--(Part II)
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
5-20-206.........................  Volatile Organic Compound      3/24/04      6/20/05  Revised 5-20-206.1.c.
                                    and Nitrogen Oxides                        [Insert   applicable to the
                                    Emissions Control Areas.               page number   Hampton Roads VOC
                                                                             where the   Emissions Control Area.
                                                                              document
                                                                               begins]
 
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[FR Doc. 05-12078 Filed 6-17-05; 8:45 am]
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