[Federal Register Volume 73, Number 40 (Thursday, February 28, 2008)]
[Rules and Regulations]
[Pages 10670-10673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-3388]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2007-1169; FRL-8532-6]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Amendments to Existing Regulation Provisions Concerning 
Reasonably Available Control Technology

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve revisions to the 
Commonwealth of Virginia State Implementation Plan (SIP). The revisions 
pertain to administrative amendments to the Commonwealth regulation 
governing source-specific nitrogen oxides (NOX) reasonable 
available control technology (RACT). EPA is approving these revisions 
to the Commonwealth of Virginia SIP in accordance with the requirements 
of the Clean Air Act (CAA).

DATES: This rule is effective on April 28, 2008 without further notice, 
unless EPA receives adverse written comment by March 31, 2008. 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 Docket ID Number EPA-
R03-OAR-2007-1169 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-2007-1169, Cristina Fernandez, 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-
2007-1169. 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 Virginia Department of Environmental Quality, 629 East 
Main Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Gregory Becoat, (215) 814-2036, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Summary of the SIP Revision

    On September 28, 2006, the Commonwealth of Virginia submitted a 
revision to its State Implementation Plan. The revision consists of 
administrative amendments to Virginia's Regulation A99 pertaining to 
RACT for the control of NOX emissions from major stationary 
sources. The amendments consist of administrative wording changes, 
removal of surplus definitions, and the paragraph renumbering of a 
particular section.

II. Description of SIP Revision and EPA Review

    These SIP revisions consist of the following changes:
    1. Administrative wording changes to Regulations 9 VAC 5-40-240, 9 
VAC 5-40-250, and 9 VAC 5-40-311B.
    2. Removal of definitions ``Combustion unit,'' ``Fuel burning 
equipment installation,'' and ``Total capacity'' in section 9 VAC 5-40-
311B.3. Section 9 VAC 5-40-311B.1 establishes that the definitions in 
section 9 VAC 5-40-311B.3 apply only to section 9 VAC 5-40-311. 
Although EPA had approved these revisions on April 28, 1999 (64 FR 
22789), these three terms are used only in regulatory provisions which 
are not part of the approved Virginia SIP.
    3. Renumbering of 9 VAC 5-40-311C.3.b., d., e., f., and g. to 9 VAC 
5-40-311C.3.a., through e. respectively.
    EPA views the revisions to 9 VAC 5-40-240, 9 VAC 5-40-250, and 9 
VAC 5-

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40-311B., as administrative changes. EPA also views the renumbering of 
9 VAC 5-40-311C.3.b., d., e., f., and g. to 9 VAC 5-40-311C.3.a., 
through e. as an administrative re-codification. EPA considers these 
revisions non-substantive, as they do not affect the scope of the 
currently approved Virginia SIP, and consequently, cannot interfere 
with timely attainment or progress toward attainment of a national 
ambient air quality standard (NAAQS), nor interfere with any other 
provision of the Clean Air Act (CAA).

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 CAA, 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 CAA is likewise unaffected by 
this, or any, state audit privilege or immunity law.

IV. Final Action

    EPA is approving the Commonwealth of Virginia SIP revision to make 
the administrative changes to 9 VAC 5-40-240, 9 VAC 5-40-250, and 9 VAC 
5-40-311, which was submitted on September 28, 2006. 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 April 28, 2008 without further notice unless EPA 
receives adverse comment by March 31, 2008. 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 (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

[[Page 10672]]

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 CAA. 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 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 CAA. 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 CAA. 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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by April 28, 2008. 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 amendments to the Commonwealth of Virginia 
regulations governing source-specific NOX RACT 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, Incorporation by 
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements.

    Dated: February 12, 2008.
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 40 CFR 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 40, Sections 5-40-240, 5-40-250, and 5-40-311 
to read as follows:


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
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                                                  * * * * * * *
============================
                                           Part II Emission Standards
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
============================
                                 Article 4 General Process Operations (Rule 4-4)
----------------------------------------------------------------------------------------------------------------
5-40-240...................  Applicability and            1/1/02  02/28/08 [Insert page
                              designation of                       number where the
                              affected facility.                   document begins].
5-40-250...................  Definitions...........       1/1/02  02/28/08 [Insert page
                                                                   number where the
                                                                   document begins].
 
                                                  * * * * * * *
5-40-311...................  Reasonably available         1/1/02  02/28/08 [Insert page   Removal of definitions
                              control technology                   number where the        ``Combustion unit,''
                              guidelines for                       document begins].       ``Fuel burning
                              stationary sources of                                        equipment
                              nitrogen oxides.                                             installation'' and
                                                                                           ``Total capacity'' in
                                                                                           9 VAC 5-40-311B.3.
                                                                                          Exception: 311D.
 
                                                  * * * * * * *
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 [FR Doc. E8-3388 Filed 2-27-08; 8:45 am]
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