[Federal Register Volume 72, Number 19 (Tuesday, January 30, 2007)]
[Rules and Regulations]
[Pages 4207-4210]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-1337]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2005-VA-0017; FRL-8273-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Emission Standards for Consumer Products in the Northern 
Virginia Volatile Organic Compound Emissions Control Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the Commonwealth of Virginia. This revision pertains to 
the emission standards for consumer products sold and used in the 
Northern Virginia volatile organic compound (VOC) emissions control 
area. EPA is approving this SIP revision in accordance with the Clean 
Air Act (CAA or Act).

EFFECTIVE DATE: This final rule is effective on March 1, 2007.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2005-VA-0017. All documents in the docket are listed 
in the http://www.regulations.gov Web site. Although listed in the 
electronic docket, some information is not publicly available, i.e., 
confidential business information (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 through 
www.regulations.gov or in hard copy 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. 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: Rose Quinto, (215) 814-2182, or by e-
mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On January 31, 2006 (71 FR 5035), EPA published a notice of 
proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR 
proposed approval of a new rule, 9 VAC 5 Chapter 40, Consumer Products 
(9 VAC 5-40-7240 through 9 VAC 5-40-7360); and the amendments to 9 VAC 
5-20-21 that incorporate by reference test methods and procedures 
needed for 9 VAC 5 Chapter 40. The formal SIP revision was submitted by 
the Virginia Department of Environmental Quality (VADEQ) on October 25, 
2005.

II. Summary of SIP Revision

    The Virginia consumer products rule, 9 VAC 5 Chapter 40, applies 
only to sources in the Northern Virginia VOC emissions control area 
designated in 9 VAC 5-20-206. The rule applies to a person who sells, 
supplies, offers for sale, or manufactures consumer products on or 
after July 1, 2005. Also included in the rule are definitions, the VOC 
content limits, standards and exemptions, innovative products, 
requirements for waiver requests, administrative requirements for 
labeling and reporting, test methods for demonstrating compliance, 
compliance schedules, an alternative control plan, monitoring, and 
reporting and recordkeeping requirements.
    Amendments to 9 VAC 5-20-21 incorporate by reference additional 
test methods and procedures needed for 9 VAC 5 Chapter 40.
    Other specific requirements of 9 VAC 5 Chapter 40, amendments to 9 
VAC 5-20-21, and the rationale for EPA's proposed action are explained 
in the NPR and will not be restated here. On February 2, 2006, EPA 
received a single comment on its January 31, 2006 NPR. A summary of the 
comment submitted and EPA's response is provided in Section III of this 
document.

III. Summary of Public Comments and EPA Responses

    Comment: A commenter pointed out that one of its test methods 
referenced in the State regulation had been revised and renumbered.
    Response: The commenter merely points out that one test method that 
the rule incorporates has been revised and renumbered. The commenter 
does not request that EPA disapprove the rule, nor allege that the 
current regulation incorporating the earlier version of the test method 
is in any way adequate. Therefore, EPA concludes that the information 
provided by the commenter does not change EPA's proposal to approve the 
SIP revision.

IV. 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

[[Page 4208]]

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.

V. Final Action

    EPA is approving the Virginia SIP revision submitted on October 25, 
2005 for the new regulation, 9 VAC 5 Chapter 40--Consumer Products, and 
the amendments to 9 VAC 5-20-21 that incorporates by reference test 
methods and procedures needed for 9 VAC 5 Chapter 40.

VI. 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 
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 April 2, 2007. 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 pertaining to the Virginia consumer products rule, 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

[[Page 4209]]

recordkeeping requirements, Volatile organic compounds.

    Dated: January 18, 2007.
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. Section 52.2420 is amended as follows:
0
a. The table in paragraph (c) is amended by adding an entry for Chapter 
40, Part II, Article 50.
0
b. The table in paragraph (e) is amended by adding an entry for 
``Documents Incorporated by Reference'' at the end of the table.


Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

                                 EPA-Approved Virginia Regulations and Statutes
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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 40 Existing Stationary Sources
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                           Part II Emission Standards
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                    Article 50 Consumer Products (Rule 4-50)
----------------------------------------------------------------------------------------------------------------
5-40-7240.........................  Applicability.......      3/9/05  January 30, 2007
                                                                       [Insert page number
                                                                       where the document
                                                                       begins].
5-40-7250.........................  Exemptions..........      3/9/05  January 30, 2007
                                                                       [Insert page number
                                                                       where the document
                                                                       begins].
5-40-7260.........................  Definitions.........      3/9/05  January 30, 2007
                                                                       [Insert page number
                                                                       where the document
                                                                       begins].
5-40-7270.........................  Standard for              3/9/05  January 30, 2007
                                     volatile organic                  [Insert page number
                                     compounds.                        where the document
                                                                       begins].
5-40-7280.........................  Alternative control       3/9/05  January 30, 2007
                                     plan (ACP) for                    [Insert page number
                                     consumer products.                where the document
                                                                       begins].
5-40-7290.........................  Innovative Products.      3/9/05  January 30, 2007
                                                                       [Insert page number
                                                                       where the document
                                                                       begins].
5-40-7300.........................  Administrative            3/9/05  January 30, 2007
                                     requirements.                     [Insert page number
                                                                       where the document
                                                                       begins].
5-40-7320.........................  Compliance..........      3/9/05  January 30, 2007
                                                                       [Insert page number
                                                                       where the document
                                                                       begins].
5-40-7330.........................  Compliance schedules      3/9/05  January 30, 2007
                                                                       [Insert page number
                                                                       where the document
                                                                       begins].
5-40-7340.........................  Test methods and          3/9/05  January 30, 2007
                                     procedures.                       [Insert page number
                                                                       where the document
                                                                       begins].
5-40-7350.........................  Monitoring..........      3/9/05  January 30, 2007
                                                                       [Insert page number
                                                                       where the document
                                                                       begins].
5-40-7360.........................  Notification,             3/9/05  January 30, 2007
                                     records and                       [Insert page number
                                     reporting.                        where the document
                                                                       begins].
 
                                                  * * * * * * *
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* * * * *
    (e) * * *

[[Page 4210]]



 
----------------------------------------------------------------------------------------------------------------
                                                             State
    Name of non-regulatory SIP           Applicable        submittal    EPA approval date        Additional
             revision                  geographic area       date                                Explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Documents Incorporated by           Northern Virginia       10/25/05  January 30, 2007      State effective date
 Reference.                          VOC Emissions                     [Insert page number   is 3/9/05
                                     Control Area                      where the document   9 VAC 5-20-21,
                                     designated in 9 VAC               begins].              Sections
                                     5-20-206.                                               E.1.a.(16).,
                                                                                             E.4.a.(18) through
                                                                                             a.(20), E.6.a,
                                                                                             E.11.a.(3),
                                                                                             E.12.a.(5) through
                                                                                             a.(8), E.14.a. and
                                                                                             E.14.b.
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 [FR Doc. E7-1337 Filed 1-29-07; 8:45 am]
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