[Federal Register Volume 76, Number 216 (Tuesday, November 8, 2011)]
[Proposed Rules]
[Pages 69214-69217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-28644]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2011-0730; FRL-9487-5]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Consumer and Commercial Products

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) 
revision submitted by the Commonwealth of Virginia. The SIP revision 
adds a new chapter (9VAC5-45--Consumer and Commercial Products) in 
order to control volatile organic compounds (VOC) from portable fuel 
containers, consumer products, architectural and industrial (AIM) 
coatings, adhesives and sealants, and asphalt paving operations within 
the Northern Virginia and Fredericksburg VOC Emissions Control Areas. 
The SIP revision also includes new and revised documents incorporated 
by reference into the Virginia regulations (9VAC5-20-21--Documents 
Incorporated by Reference) in order to support the new and revised 
regulations. This action is being taken under the Clean Air Act (CAA).

DATES: Written comments must be received on or before December 8, 2011.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2011-0730 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. Email: [email protected].
    C. Mail: EPA-R03-OAR-2011-0730, Cristina Fernandez, Associate 
Director, Office of Air Program Planning, Mailcode 3AP30, 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 Number EPA-R03-OAR-
2011-0730. 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 email. 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 email comment 
directly to EPA without going through www.regulations.gov, your email 
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

[[Page 69215]]

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: Gregory Becoat, (215) 814-2036, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On March 18, 2010, the Virginia Department of Environmental Quality 
(VADEQ) submitted a revision to the Virginia SIP. The SIP revision 
consists of new and revised standards for the control of VOCs from 
certain types of consumer and commercial products in the Northern 
Virginia and Fredericksburg VOC Emissions Control Areas. The SIP 
revision also includes new and revised documents incorporated by 
reference into the Virginia regulations to support the new and revised 
regulations. The regulations will control emissions of VOCs, which will 
reduce the formation of ozone, and thereby protect public health and 
welfare.

II. Summary of SIP Revision

    The SIP revision amends Chapter 9VAC5-20-21--Documents Incorporated 
by Reference, in order to make administrative changes for clarity, 
style, format, and renumbering. The revision adds sections to 9VAC5-20-
21 in order to incorporate by reference into the Virginia regulations 
the new and revised regulations. The Commonwealth of Virginia 
established a new chapter, 9VAC5-45--Consumer and Commercial Products 
(Chapter 45) in order to control VOC emissions from various consumer 
and commercial products within the Northern Virginia and Fredericksburg 
VOC Emissions Control Areas. The new chapter consists of general 
requirements that pertain to regulating consumer and commercial 
products, as well as, VOC content and emission limits for consumer and 
commercial products. Chapter 45 also contains the control technology, 
testing, monitoring, administrative, recordkeeping, and reporting 
requirements necessary to determine compliance with each of the 
applicable standards. This SIP revision establishes requirements to 
specify applicability to any product, owner, or other person subject to 
the provisions of Chapter 45, establish compliance with the standards 
in Chapter 45, establish emission tests for operations and products 
subject to the standards subject to the provisions of Chapter 45, 
specify monitoring requirements, and specify notification, records, and 
reporting requirements.
    Chapter 45 establishes Article 1 and Article 2 in order to 
implement design, performance, and labeling standards for portable fuel 
containers and spouts before and after August 1, 2010 and to prohibit 
owners form manufacturing, distributing, and selling noncompliant 
products. The portable fuel containers and spouts requirements in this 
SIP revision establish (1) applicability to any person who sells, 
supplies, offers for sale, or manufactures for sale portable fuel 
containers and spouts within the Northern Virginia and Fredericksburg 
VOC Emissions Control Areas; (2) specify exemptions for any portable 
fuel container or spout manufactured, sold, supplied, or offered for 
sale within and used outside the Northern Virginia and Fredericksburg 
VOC Emissions Control Areas; (3) add definitions and terms; (4) specify 
performance standards for VOCs; (5) specify administrative 
requirements; (6) specify compliance procedures; (7) establish 
compliance schedules; (8) specify test methods and procedures; (9) 
specify monitoring applicability; and (10) specify notification, 
records, and reporting requirements. In addition, the SIP revision 
specifies certification and innovative products procedures for portable 
fuel containers and spouts manufactured after August 1, 2010.
    The Commonwealth of Virginia establishes Article 3 and Article 4 in 
Chapter 45 in order to implement VOC content standards for certain 
individual consumer product categories before and after August 1, 2010 
and to prohibit owners from manufacturing, distributing, advertising, 
or selling noncompliant products. This SIP revision adds regulations 
that establish (1) applicability to any consumer product that contains 
VOCs within the Northern Virginia and Fredericksburg VOC Emissions 
Control Areas; (2) specifies exemptions; (3) adds definitions and 
terms; (4) sets applicability to any person who sells, supplies, offers 
for sale, or manufactures consumer products that contains VOCs in 
excess of the specified limits; (5) specifies VOC content limits in 
percent VOCs by weight for consumer products with a specified 
compliance date; (6) establishes applicability for alternative control 
plan (ACP) for consumer products and criteria for innovative products 
exemption and requirements for waiver requests; and (7) specifies 
innovative products procedures. In addition, the regulations specify 
administrative requirements, compliance procedures, compliance 
schedules, test methods and procedures, monitoring applicability, and 
notification, records, and reporting requirements.
    Chapter 45 adds Article 5 in order to control VOC emissions from 
AIM, implement VOC content standards, and prohibit owners from 
manufacturing, distributing, selling, and using noncompliant products. 
This SIP revision adds regulations that establish (1) applicability to 
any owner or person who supplies, sells, offers for sale, or 
manufactures any architectural coating within the Northern Virginia and 
Fredericksburg VOC Emissions Control Areas; (2) specifies exemptions; 
(3) adds definitions and terms; (4) specifies that no person or owner 
shall manufacture, blend, or repackage for sale, supply, sell, or offer 
for sale, or solicit for application or apply any architectural coating 
with VOC content in excess of the applicable limits; (5) establishes 
that the most restrictive VOC content limit shall apply to any coating 
that meets the definition of or is recommended for use for more than 
one of the coating categories specified; and (6) establishes 
requirements for various architectural and industrial maintenance 
coating types. In addition, the regulations specify administrative 
requirements, compliance procedures, compliance schedules, test methods 
and procedures, monitoring applicability, and notification, records, 
and reporting requirements.
    This SIP revision also establishes Article 6 in Chapter 45 in order 
to control VOC emissions from adhesives, adhesive primers, sealants, 
and sealant primers, implement VOC content limits, and prohibit owners 
from manufacturing, distributing, selling, or

[[Page 69216]]

applying noncompliant products based on a model rule. The Ozone 
Transport Commission (OTC) states developed a model rule ``OTC Model 
Rule For Adhesives and Sealants'' dated 2006 which was based on the 
1998 California Air Resources Board (CARB) reasonably available control 
technology (RACT) determination. This RACT determination applied to 
both the manufacture and use of adhesives, sealants, adhesive primers, 
or sealant primers, in both industrial and manufacturing facilities and 
in the field. California Air Districts used this determination to 
develop regulations for this category. EPA addressed this source 
category with a Control Techniques Guideline (CTG) document for 
Miscellaneous Industrial Adhesives dated September 2008. This CTG was 
developed in response to section 183(e) of the CAA requirement for EPA 
to study and regulate consumer and commercial products, which is 
included in EPA's Report to Congress, ``Study of Volatile Organic 
Compound Emissions from Consumer and Commercial Products--Comprehensive 
Emissions Inventory.'' The miscellaneous industrial adhesives category 
was limited to adhesives and adhesive primers used in industrial and 
manufacturing operations and did not include products applied in the 
field. Therefore, the OTC model rule and state efforts in developing 
individual regulations preceded EPA's CTG for this source category and 
were broader in applicability.
    The adhesives and sealants requirements in this SIP revision set 
(1) applicability to any owner or person who supplies, sells, offers 
for sale, manufactures, uses, applies for compensation, solicits the 
use of, requires the use of, or specifies the application of, any 
adhesive, sealant, adhesive primer, or sealant primer that contains 
VOCs within the Northern Virginia and Fredericksburg VOC Emissions 
Control Areas; (2) set exemptions for specific products and compounds 
of adhesives, sealants, adhesive primers, or sealant primers; (3) add 
definitions and terms; (4) specify that no person or owner shall sell, 
supply, or offer for sale, or manufactured for sale any adhesive, 
sealant, adhesive primer or sealant primer with VOC content in excess 
of the limits specified; (5) specify requirements for owners or 
operators of a facility that uses or applies a surface preparation 
solvent or cleanup solvent or removes an adhesive, sealant, adhesive 
primer, sealant primer from the parts of spray application equipment; 
(6) specify requirements for proper storage and disposal, work 
practices, surface preparation and cleanup solvent composition; (7) 
provide for an alternative add-on control system requirement of at 
least 85 percent overall control efficiency (capture and destruction), 
by weight; (8) specify standards for visible emissions; specify 
administrative requirements; (9) specify compliance procedures and 
compliance schedules; (10) specify test methods and procedures; (11) 
specify monitoring applicability; (12) specify notification, records, 
and reporting requirements; (13) specify registration provisions; and 
(14) specify facility and control equipment maintenance or malfunction 
provisions.
    Chapter 45 also adds Article 7 in order to control VOC emissions 
from asphalt paving operations, which prescribes the use of emulsified 
asphalt coatings except for the purpose of coating residential 
driveways and prohibit the mixing, storage, and application of 
noncompliant products. The SIP revision adds regulations that (1) 
establish applicability to any owner or person who manufactures, mixes, 
stores, uses, or applies any liquefied asphalt for paving operations 
within the Northern Virginia and Fredericksburg VOC Emissions Control 
Areas; (2) add definitions and terms; (3) specify no owner or person 
shall cause or permit the manufacture, mixing, storage, use, or 
application of liquefied asphalt for paving operations unless it is 
emulsified; specify exemptions; (4) specify standards for visible 
emissions; and (5) specify standards for fugitive dust/emissions. In 
addition, the regulations specify compliance procedures, test methods 
and procedures, monitoring provisions, and notification, records, and 
reporting requirements.
    A detailed summary of EPA's review of and rationale for proposing 
to approve this SIP revision may be found in the Technical Support 
Document (TSD) for this action which is available on-line at 
www.regulations.gov, Docket number EPA-R03-OAR-2011-0730.

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

[[Page 69217]]

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. Proposed Action

    EPA is proposing to approve the Virginia SIP revision adding 
Chapter 45--Consumer and Commercial Products that consists of new and 
revised standards for the control of VOCs from portable fuel 
containers, consumer products, architectural and industrial coatings, 
adhesives and sealants, and asphalt paving operations in the Northern 
Virginia and Fredericksburg VOC Emissions Control Areas. EPA is also 
proposing to approve the Virginia SIP revision that includes new and 
revised documents incorporated by reference into the Virginia 
regulations (9VAC5-20-21--Documents Incorporated by Reference). EPA is 
soliciting public comments on the issues discussed in this document. 
These comments will be considered before taking final action.

V. Statutory and Executive Order Reviews

    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 proposes to approve state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed 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 proposed rule, pertaining to Virginia's control 
of VOCs from commercial and consumer products 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Ozone, Reporting 
and recordkeeping requirements, Volatile organic compounds.

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

    Dated: October 25, 2011.
W.C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2011-28644 Filed 11-7-11; 8:45 am]
BILLING CODE 6560-50-P