[Federal Register Volume 74, Number 56 (Wednesday, March 25, 2009)]
[Rules and Regulations]
[Pages 12572-12575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-6663]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2009-0093; FRL-8779-8]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Volatile Organic Compound Reasonably Available Control 
Technology for Reynolds Consumer Products Company

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's State Implementation Plan (SIP). This 
revision pertains to a State operating permit containing terms and 
conditions for the control of emissions of volatile organic compounds 
(VOCs) from Reynolds Consumer Products Company located in Richmond, 
Virginia. The submittal is for the purpose of meeting the requirements 
for reasonably available control technology (RACT) in order to 
implement the maintenance plan for the Richmond 8-hour ozone 
maintenance area. EPA is approving the revision to the Virginia SIP in 
accordance with the requirements of the Clean Air Act (CAA).

DATES: This rule is effective on May 26, 2009 without further notice, 
unless EPA receives adverse written comment by April 24, 2009. 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-2009-0093 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: [email protected].
    C. Mail: EPA-R03-OAR-2009-0093, Cristina Fernandez, Chief, Air 
Quality Planning, 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-
2009-0093. 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.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 http://www.regulations.gov or e-mail. The http://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 http://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 
http://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 http://www.regulations.gov or in hard copy during normal business hours at the 
Air

[[Page 12573]]

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: Irene Shandruk, (215) 814-2166, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    RACT is the lowest emission limit that a particular source is 
capable of meeting by the application of control technology that is 
reasonably available with the consideration of technological and 
economic feasibility. See, e.g., 72 FR 20586 at 20610 (April 25, 2007). 
When the Richmond area was originally designated as an ozone 
nonattainment area under the 1-hour standard, it was classified as 
moderate and thereby had to meet the non-CTG RACT requirements of 
section 182 of the CAA. As part of the 1-hour ozone attainment plan, 
one of the sources located in the area identified as being subject to 
non-CTG RACT was Reynolds Metals Company. The company's Richmond Foil 
Plant produces aluminum foil by rolling aluminum into very thin sheets. 
VOC emissions at this plant come from lubricants used on 16 foil 
rolling mills.
    The Reynolds Consumer Products Company located in Richmond, 
Virginia underwent RACT analysis, and a consent order was issued to the 
facility on December 18, 1987. The order was then submitted to EPA as a 
SIP revision, and approved into the Commonwealth's SIP on August 20, 
1990 (55 FR 33904).
    On September 22, 2004, under the new 8-hour ozone standard, the 
Richmond area was classified as a marginal nonattainment area. On 
September 20, 2006, the Virginia Department of Environmental Quality 
(VADEQ) formally submitted a request to redesignate the Richmond area 
from nonattainment to attainment for the 8-hour ozone NAAQS. On 
September 25, 2006, the VADEQ submitted a maintenance plan for the 
Richmond area as a SIP revision to ensure continued attainment. The 
redesignation request and maintenance plan were approved on June 1, 
2007 (72 FR 30485). Section 107(d)(3)(E) of the CAA stipulates that for 
an area to be redesignated, EPA must approve a maintenance plan that 
meets the requirements of Section 175A. All applicable nonattainment 
area requirements remain in place. The plan includes a demonstration 
that emissions will remain within the 2005 levels for a 10-year period 
by keeping in place key elements of the current federal and state 
regulatory programs, including case-by-case RACT requirements for the 
area. Because the Richmond area in which this facility is located has 
continuously been classified as either a nonattainment or a maintenance 
area, the RACT requirements remain in effect and a change to the 
facility's RACT requirements necessitates a change to the SIP.

II. Summary of SIP Revision

    On October 20, 2008, the Commonwealth of Virginia submitted a 
formal revision to its SIP. The SIP revision consists of a State 
operating permit containing terms and conditions for the control of 
emissions of VOCs from Reynolds Consumer Products Company located in 
Richmond, Virginia. The submittal is for the purpose of meeting the 
requirements for RACT in order to implement the maintenance plan for 
the Richmond 8-hour ozone maintenance area.
    Reynolds seeks the option of using less expensive and more readily 
available materials should the need arise due to recent costs and 
availability of the currently used material. A State operating permit, 
intended to replace the consent order for the facility, has been 
submitted to ensure compliance with the non-CTG RACT requirements.

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

[[Page 12574]]

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 Virginia's Reynolds Consumer Products Company 
State operating permit SIP revision for the purpose of meeting the 
requirements for RACT in order to implement the maintenance plan for 
the Richmond 8-hour ozone maintenance area.
    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 May 26, 2009 without further 
notice unless EPA receives adverse comment by April 24, 2009. 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 the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

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 action 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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action 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 May 26, 2009. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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. Parties with objections to this direct final 
rule are encouraged to file a comment in response to the parallel 
notice of proposed rulemaking for this action published in the proposed 
rules section of today's Federal Register, rather than file an 
immediate petition for judicial review of this direct final rule, so 
that EPA can withdraw this direct final rule and address the comment in 
the proposed rulemaking.
    This action approving Virginia's SIP revision pertaining to a State 
operating permit containing terms and conditions for the control of 
emissions of VOCs from the Reynolds Consumer Products Company 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, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: February 24, 2009.
William T. Wisniewski,
Acting 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 (d) is amended by adding 
the entry for Reynolds Consumer Products Company at the end of the 
table to read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (d) * * *

[[Page 12575]]



                                    EPA-Approved Source-Specific Requirements
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                                                              State
            Source name                Permit/order or      effective     EPA approval date      40 CFR part 52
                                     registration number       date                                 citation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Reynolds Consumer Products Company  Registration No.           10/1/08  03/25/09.............     52.2420(d)(12)
                                     50534.                             [Insert page number
                                                                         where the document
                                                                         begins].
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 [FR Doc. E9-6663 Filed 3-24-09; 8:45 am]
BILLING CODE 6560-50-P