[Federal Register Volume 74, Number 171 (Friday, September 4, 2009)]
[Rules and Regulations]
[Pages 45766-45769]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21399]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2009-0520; FRL-8953-1]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Opacity Variance for Rocket Testing Operations Atlantic 
Research Corporation's Orange County Facility

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 the addition of 9 VAC 5 Chapter 220, ``Variance for Rocket 
Motor Test Operations at Atlantic Research Corporation Orange County 
Facility'' and an opacity variance for the rocket motor test operations 
at Aerojet Corporation's Orange County Facility, in lieu of the opacity 
limits established in the Virginia SIP. 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 November 3, 2009 without further 
notice, unless EPA receives adverse written comment by October 5, 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-2009-0520 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-2009-0520, 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-
2009-0520. 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 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. Background

    On January 26, 2004, the Commonwealth of Virginia submitted an 
opacity variance for the rocket motor test operations at Aerojet 
Corporation's Orange County Facility as a revision to its SIP. The 
variance is included in Title 9 of the Virginia Administrative Code (9 
VAC Chapter 220). Virginia established a variance that requires the 
facility to limit total particulate matter (PM) emissions from its 
rocket motor test operations to 714 pounds per hour (9 VAC 5-220-30.B), 
in lieu of opacity limits set forth in regulation 9 VAC 5-50-80.
    On February 19, 2009, Virginia Department of Environmental Quality 
(VADEQ) submitted additional information to support the variance for 
the rocket motor test operations, which included a comprehensive 
technical support document (TSD) that provides additional air 
dispersion modeling information.

II. Description of SIP Revision

    This SIP revision consists of the addition of the ``Variance for 
Rocket Motor Test Operations at Atlantic Research Corporation Orange 
County Facility'' (9 VAC 5 Chapter 220) in order to add regulations 9 
VAC 5-220-10--Applicability and designation of affected facility, 9 VAC 
5-220-20--Definitions, 9 VAC 5-220-30--Applicability of standard for 
visible emissions and standard for particulate matter, 9 VAC 5-220-40--
Compliance determination, monitoring, recordkeeping, and reporting, 9 
VAC 5-220-50--Transfer of ownership and 9 VAC 5-220-60--Applicability 
of future regulation amendments.
    The addition of the ``Variance for Rocket Motor Test Operations at 
Atlantic Research Corporation Orange County Facility'' (9 VAC 5 Chapter 
220) pertains to Atlantic Research Corporation Orange County Facility 
in terms of applicability and designation, definitions, compliance 
determination, monitoring, recordkeeping, and recording, transfer of 
ownership, and applicability of future regulation amendments. This 
revision does not change the substance of the SIP and consequently, 
does not interfere with the timely attainment or progress towards 
attainment of a national ambient air quality standard (NAAQS), nor 
interfere with any other provision of the CAA, 42 U.S.C. 7401 et seq.
    The addition of regulation 9 VAC 5-220-30--``Applicability of 
standard for visible emissions and standard for particulate matter'' is 
to establish PM emission limits for Aerojet Corporation's rocket test 
operations, in lieu of opacity standards established in regulation 9 
VAC 5-50-80. As part of this SIP revision, VADEQ included a modeling 
analysis titled ``Technical

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Support Documentation for Opacity Variance for Rocket Test Facility'' 
which demonstrates that emissions from Aerojet Corporation's Orange 
County Facility will not cause or significantly contribute to 
violations of the PM NAAQS. Further details of VADEQ and EPA's modeling 
analysis can be found in EPA's TSD for this rulemaking.

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 Virginia's SIP revision to add the ``Variance for 
Rocket Motor Test Operations at Atlantic Research Corporation Orange 
County Facility'' (9 VAC 5 Chapter 220), which includes regulation 9 
VAC 5-220-30--``Applicability of standard for visible emissions and 
standard for particulate matter'' to establish PM emission limits for 
Aerojet Corporation's rocket test operations in lieu of opacity 
standards established in regulation 9 VAC 5-50-80. 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 November 3, 2009 without further notice unless EPA 
receives adverse comment by October 5, 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. 
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 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);

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     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. 
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 November 3, 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 
opacity variance for rocket testing operations at Atlantic Research 
Corporation's Orange County Facility, 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, Particulate Matter, Reporting and 
recordkeeping requirements, Sulfur oxides.

    Dated: August 26, 2009.
James W. Newsom,
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 (c) is amended by adding an 
entry for Chapter 220 to read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

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                                                               State                              Explanation
         State citation                 Title/subject        effective    EPA approval date       [former SIP
                                                                date                               citation]
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                                                  * * * * * * *
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9 VAC 5 Chapter 220               Opacity Variance for Rocket Testing Operations Atlantic Research Corporation's
                                                               Orange County Facility
----------------------------------------------------------------------------------------------------------------
5-220-10........................  Applicability and             12/1/02  09/4/09 [Insert
                                   designation of affected                page number where
                                   facility.                              the document
                                                                          begins].
5-220-20........................  Definitions.............      12/1/02  09/4/09 [Insert
                                                                          page number where
                                                                          the document
                                                                          begins].
5-220-30........................  Applicability of              12/1/02  09/4/09 [Insert
                                   standard for visible                   page number where
                                   emissions and standard                 the document
                                   for particulate matter.                begins].
5-220-40........................  Compliance                    12/1/02  09/4/09 [Insert
                                   determination,                         page number where
                                   monitoring,                            the document
                                   recordkeeping, and                     begins].
                                   reporting.
5-220-50........................  Transfer of ownership...      12/1/02  09/4/09 [Insert
                                                                          page number where
                                                                          the document
                                                                          begins].
5-220-60........................  Applicability of future       12/1/02  09/4/09 [Insert
                                   regulations.                           page number where
                                                                          the document
                                                                          begins].
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[FR Doc. E9-21399 Filed 9-3-09; 8:45 am]
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