[Federal Register Volume 75, Number 37 (Thursday, February 25, 2010)]
[Rules and Regulations]
[Pages 8493-8496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-3509]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2009-0871; FRL-9116-1]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Revisions to the Definition of Volatile Organic Compound and 
Other Terms

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 
Virginia State Implementation Plan (SIP). The revisions amend the 
wording of 22 definitions, including the definition of Volatile Organic 
Compound (VOC). EPA is approving these revisions to Virginia's 
definitions in accordance with the requirements of the Clean Air Act 
(CAA).

DATES: This rule is effective on April 26, 2010 without further notice, 
unless EPA receives adverse written comment by March 29, 2010. 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-2009-0871 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-2009-0871, Harold A. Frankford, Air Protection 
Division, Mailcode 3AP00, 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-
2009-0871. 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: Harold A. Frankford, (215) 814-2108, 
or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

 I. Background

    Throughout this document, whenever ``we,'' ``us,'' or ``our'' is 
used, we mean EPA. On October 6, 2009, the Commonwealth of Virginia 
submitted a formal revision to its State Implementation Plan (SIP). The 
SIP revision consists of amendments to 22 definitions listed in 9VAC5 
Chapter 10 (General Definitions), Regulation 5-10-20 (Terms defined). 
The amended terms are:
    Ambient air quality standard, Criteria pollutant, Dispersion 
technique, Emission limitation, Emission standard, Excessive 
concentration, Federal Clean Air Act, Federally enforceable, Good 
engineering practice, Initial emission test, Initial performance test, 
Public hearing, Reference method, Regulations for the Control and 
Abatement of Air Pollution, Reid vapor pressure, Run, Standard of 
performance, State enforceable, These regulations, True vapor pressure, 
Vapor pressure, and Volatile organic compound.

II. Summary of SIP Revision

    Virginia amended the definition of ``Volatile organic compound'' to 
add the organic compound (1)1,1,1,2,2,3,4,5,5,5-decafluoro-3-methoxy-4-
trifluoromethyl-pentane (HFE-7300) to

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the list of excluded compounds. The exclusion of this compound is 
consistent with the list of excluded compounds found in EPA's 
definition of ``Volatile organic compounds (VOC)'' at 40 CFR 
51.100(s)(1).
    Virginia amended the 21 additional terms to be consistent with the 
format of Commonwealth regulations as prescribed by the Commonwealth's 
Registrar of Regulations. The amendments are administrative in nature 
and do not alter the meaning or intent of these defined terms.

III. General Information Pertaining to 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 amendments to Virginia Regulation 9VAC5-10-20 
(Terms defined) as a revision to the Virginia State Implementation 
Plan. 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 26, 2010 without further notice 
unless EPA receives adverse comment by March 29, 2010. 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

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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 April 26, 2010. 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 to approve 22 amended terms in 
Virginia's General Definitions regulation as a revision to the Virginia 
SIP 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: February 1, 2010.
William C. Early,
Acting Regional Administrator, Region III.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority for citation for 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 sixth entry for 5-10-20 to read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

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                                                                          State
            State  citation                      Title/subject          effective        EPA approval date          Explanation [former SIP citation]
                                                                           date
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9 VAC 5, Chapter 10....................             General Definitions
                                                          [Part I]
 
                                                                      * * * * * * *
5-10-20................................                 Terms Defined       4/2/09  2/25/10 [Insert page        Revised definitions of Ambient air
                                                                                     number where the document   quality standard, Criteria pollutant,
                                                                                     begins].                    Dispersion technique, Emission
                                                                                                                 limitation, Emission standard,
                                                                                                                 Excessive concentration, Federal Clean
                                                                                                                 Air Act, Federally enforceable, Good
                                                                                                                 engineering practice, Initial emission
                                                                                                                 test, Initial performance test, Public
                                                                                                                 hearing, Reference method, Regulations
                                                                                                                 for the Control and Abatement of Air
                                                                                                                 Pollution, Reid vapor pressure, Run,
                                                                                                                 Standard of performance, State
                                                                                                                 enforceable, These regulations, True
                                                                                                                 vapor pressure, Vapor pressure, and
                                                                                                                 Volatile organic compound.
 
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[FR Doc. 2010-3509 Filed 2-24-10; 8:45 am]
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