[Federal Register Volume 74, Number 114 (Tuesday, June 16, 2009)]
[Rules and Regulations]
[Pages 28444-28447]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-14018]



40 CFR Part 52

[EPA-R03-OAR-2007-0287; FRL-8918-2]

Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Northern Virginia Reasonably Available Control Technology 
Under the 8-Hour Ozone National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.


SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the Commonwealth of Virginia. This SIP revision consists 
of a demonstration that the Virginia portion (Cities of Alexandria, 
Fairfax, Falls Church, Manassas, and Manassas Park;

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Counties of Arlington, Fairfax, Loudon, and Prince William) of the 
Washington, DC-MD-VA 8-Hour Ozone Nonattainment Area meets the 
requirements of reasonably available control technology (RACT) for 
oxides of nitrogen (NOX) and volatile organic compounds 
(VOCs) set forth by the Clean Air Act (CAA). These requirements are 
based on: Certification that previously adopted RACT controls in 
Virginia's SIP that were approved by EPA under the 1-hour ozone 
national ambient air quality standard (NAAQS) are based on the 
currently available technically and economically feasible controls, and 
that they continue to represent RACT for the 8-hour implementation 
purposes; a negative declaration demonstrating that no facilities exist 
in the Virginia portion of the Washington, DC-MD-VA area for certain 
control technology guideline (CTG) categories; and a new RACT 
determination for a specific source. This action is being taken under 
the CAA.

DATES: Effective Date: This final rule is effective on July 16, 2009.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2007-0287. 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 http://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: Gregory Becoat, (215) 814-2036, or by 
e-mail at [email protected].


I. Background

    On March 19, 2009 (74 FR 11702), EPA published a notice of proposed 
rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed 
approval of the requirements of RACT under the 8-hour ozone NAAQS. EPA 
received no comments on the proposal to approve Virginia's SIP 
revision. The formal SIP revision was submitted by the Commonwealth of 
Virginia on October 23, 2006.

II. Summary of SIP Revision

    Virginia's SIP revision contains the requirements of RACT set forth 
by the CAA under the 8-hour ozone NAAQS. Virginia's SIP revision is 
consistent with the process in the Phase 2 Rule preamble, and satisfies 
the requirements of RACT set forth by the CAA under the 8-hour ozone 
NAAQS. Virginia's SIP revision satisfies the 8-hour RACT requirements 
through (1) certification that previously adopted RACT controls in 
Virginia's SIP that were approved by EPA under the 1-hour ozone NAAQS 
are based on the currently available technically and economically 
feasible controls, and continues to represent RACT for the 8-hour 
implementation purposes; (2) a negative declaration demonstrating that 
no facilities exist in the Virginia portion of the Washington, DC-MD-VA 
area for the applicable CTG categories; and (3) a new RACT 
determination for a single source. Other requirements of Virginia's 8-
hour RACT and the rationale for EPA's proposed action are explained in 
the NPR and will not be restated here. No public comments were received 
on the NPR.

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 
    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

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any, state audit privilege or immunity law.

IV. Final Action

    EPA is approving the 8-hour RACT as a revision to the Commonwealth 
of Virginia's SIP. Virginia's SIP revision contains the requirements of 
RACT set forth by the CAA under the 8-hour ozone NAAQS. This SIP 
revision was submitted on October 23, 2006.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA 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 CAA. 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 CAA; 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. 

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 August 17, 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. This action, pertaining to the Commonwealth of Virginia's RACT 
provisions under the 8-hour ozone NAAQS, 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, Volatile organic compounds.

    Dated: June 5, 2009.
William C. Early,
Acting Regional Administrator, Region III.

40 CFR Part 52 is amended as follows:


1. The authority citation for 40 CFR part 52 continues to read as 

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

Subpart VV--Virginia

2. In Sec.  52.2420, the table in paragraph (e) is amended by adding 
the entry for ``RACT under the 8-hour ozone NAAQS''--Virginia portion 
of the Washington, DC-MD-VA area at the end of the table to read as 

Sec.  52.2420  Identification of plan.

* * * * *
    (e) * * *

   Name of non-regulatory SIP          Applicable           State                                Additional
            revision                geographic area    submittal date   EPA approval date       explanation
                                                  * * * * * * *
RACT under the 8-Hour ozone       Virginia portion of        10/23/06  06/16/09, [Insert   .....................
 NAAQS.                            the Washington, DC-                  page number where
                                   MD-VA area.                          the document

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[FR Doc. E9-14018 Filed 6-15-09; 8:45 am]