[Federal Register Volume 72, Number 109 (Thursday, June 7, 2007)]
[Proposed Rules]
[Pages 31493-31495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-11038]



40 CFR Part 52

[EPA-R03-OAR-2007-0200; FRL-8323-1]

Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Amendments to the Open Burning Regulation

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.


SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) 
revision submitted by the Commonwealth of Virginia. This SIP revision 
pertains to the amendments of Virginia's open burning regulation. This 
action is being taken under the Clean Air Act (CAA or the Act).

DATES: Written comments must be received on or before July 9, 2007.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2007-0200 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: [email protected].
    C. Mail: EPA-R03-OAR-2007-0200, Linda Miller, Acting 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. EPA-R03-OAR-
2007-0200. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at www.regulations.gov, 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 www.regulations.gov or e-mail. 
The www.regulations.gov Web site 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 www.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 
www.regulations.gov index. 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 www.regulations.gov 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: Rose Quinto, (215) 814-2182, or by e-
mail at [email protected].


I. Background

    On February 5, 2007, the Virginia Department of Environmental 
Quality (VADEQ) submitted a revision to its State Implementation Plan 
(SIP) for Open Burning Regulation. The SIP

[[Page 31494]]

revision consists of regulation amendments to the April 26, 1996 
submittal. The SIP revision expands the geographic applicability of the 
control measure to implement the open burning seasonal restrictions as 
part of its plans to reduce and maintain volatile organic compound 
(VOC) emissions in VOC emissions control areas in Virginia. The 
amendments include: 9 VAC 5-40-5600--Applicability; 9 VAC 5-40-5610--
Definitions; 9 VAC 5-40-5620--Open Burning Prohibitions; and 9 VAC 5-
40-5630--Permissible Open Burning.

II. Summary of SIP Revision

    Virginia's Open Burning Regulation (9 VAC 5 Chapter 40) applies to 
any person who permits or engages in open burning or who permits or 
engages in burning using special incineration devices.
    A special incineration device is a pit incinerator, conical or 
teepee burner, or any other device specifically designed to provide 
combustion performance. Modifications of 9 VAC 5 Chapter 40 are made to 
ensure that the regulation is consistent with the existing incinerator 
regulations of the board and waste management regulations.
    The provisions of this amended regulation are applicable only in 
the volatile organic emission control areas identified in 9 VAC 5-20-
206 of the Virginia Regulations during the months of May, June, July, 
August and September. The volatile organic emission control areas 
applicable to this regulation include:
    1. Western Virginia Emissions Control Area: Botetourt County, 
Frederick County, Roanoke County, Salem County and Winchester County.
    2. Northern Virginia Emissions Control Area: Arlington County, 
Fairfax County, Loudon County, Prince William County, Stafford County, 
Alexandria City, Fairfax City, Falls Church City, Manassas City and 
Manassas Park City.
    3. Hampton Roads Emissions Control Area: James City County, York 
County, Chesapeake City, Hampton City, Newport News City, Norfolk City, 
Poquoson City, Portsmouth City, Suffolk County, Virginia Beach City and 
Williamsburg City.
    4. Richmond Emissions Control Area: Charles City County, 
Chesterfield County, Hanover County, Henrico County, Colonial Heights 
City, Hopewell City and Richmond City.
    5. Fredericksburg Emissions Control Area: Spotsylvania County and 
Fredericksburg City.
    Definitions included in this SIP revision are: Air curtain 
incinerator, clean burning waste, clean lumber, clean wood, commercial 
waste, construction waste, debris waste, demolition waste, garbage, 
hazardous waste, household waste, industrial waste, landfill, local 
landfill, open burning, open pit incinerator, refuse, salvage 
operation, sanitary landfill, special incineration device, wood waste, 
and yard waste.
    This SIP revision provides for the control of open burning and use 
of special incineration devices for destruction of rubber tires, 
asphaltic materials, crankcase oil, impregnated wood or other rubber or 
petroleum based materials except when conducting bona fide fire 
fighting instruction at fire fighting training schools having permanent 
facilities. This SIP revision also provides for the control of open 
burning and use of special incineration device for the destruction of 
hazardous waste or containers for such materials. In addition, this SIP 
revision provides for the control of open burning and use of special 
incineration device for the purpose of salvage operation or for the 
destruction of commercial/industrial waste.
    Open burning or the use of special incineration devices is 
permitted on-site for the destruction of clean burning waste and debris 
waste resulting from property maintenance, from the development or 
maintenance of roads and highways, parking areas, railroad tracks, 
pipelines, power and communication lines, buildings or building areas, 
sanitary landfills, or from any other clearing operations. Such 
destruction is prohibited in the VOC emissions control areas (see 9 VAC 
5-20-206) during May, June, July, August and September.
    Open burning or the use of special incineration devices is also 
permitted for the destruction of clean burning waste and debris waste 
on the site of local landfills provided that the burning does not take 
place on land that has been filled and covered so as to present an 
underground fire hazard due to the presence of methane gas. Such 
destruction is prohibited in the VOC emissions control areas (see 9 VAC 
5-20-206) during May, June, July, August and September.

III. General Information Pertaining to SIP Submittals From the 
Commonwealth of Virgina

    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 
    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

[[Page 31495]]

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. Proposed Action

    In implementing the open burning restrictions, this amended 
regulation (9 VAC 5 Chapter 40) will reduce and maintain VOC emissions 
in the volatile organic emission control areas identified in 9 VAC 5-
20-206 of the Virginia regulations. EPA is proposing to approve the 
Virginia SIP revision for the Open Burning Regulation submitted on 
February 5, 2007. EPA is soliciting public comments on the issues 
discussed in this document. These comments will be considered before 
taking final action.

V. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed 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 proposes to approve State law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this proposed 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 proposes to approve 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 proposed rule also does 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), nor will it 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), because it 
merely proposes to approve 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 
proposed rule also is not subject to Executive Order 13045 (62 FR 
19885, April 23, 1997), because it approves a state rule implementing a 
Federal standard.
    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. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this proposed rule, EPA has taken the necessary steps to eliminate 
drafting errors and ambiguity, minimize potential litigation, and 
provide a clear legal standard for affected conduct. EPA has complied 
with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining 
the takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order. 
This proposed rule pertaining to the amendments of Virginia's Open 
Burning Regulation, does not impose an information collection burden 
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Nitrogen dioxide, 
Ozone, Reporting and recordkeeping requirements, Volatile organic 

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

    Dated: May 31, 2007.
William T. Wisniewski,
Acting Regional Administrator, Region III.
[FR Doc. E7-11038 Filed 6-6-07; 8:45 am]