[Federal Register Volume 71, Number 247 (Tuesday, December 26, 2006)]
[Proposed Rules]
[Pages 77353-77356]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-22058]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA R03-OAR-2006-0921; FRL-8261-2]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Amendments to VOC and NOX Emission Control Areas
and VOC Control Regulations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve State Implementation Plan (SIP)
revisions submitted by the Commonwealth of Virginia. These revisions
amend the existing volatile organic compound (VOC) and nitrogen oxide
(NOX) emissions control areas, and amend certain VOC and
NOX regulations in order to manage the extension of
applicability of these provisions to the amended VOC and NOX
emission control areas. This action is being taken under the Clean Air
Act (CAA or the Act).
DATES: Written comments must be received on or before January 25, 2007.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2006-0921 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-2006-0921, Makeba Morris, 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-
2006-0921. 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 at www.regulations.gov or
in hard copy during normal business hours at the Air Protection
Division, U.S. Environmental Protection Agency,
[[Page 77354]]
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: Ellen Wentworth, (215) 814-2034, or by
e-mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On July 18, 1997, EPA promulgated a revised 8-hour ozone standard
of 0.08 parts per million (ppm). This new standard is more stringent
than the previous 1-hour standard. On April 30, 2004, (69 FR 23858),
the EPA designated and classified areas for the 8-hour ozone national
ambient air quality standard (NAAQS). For most areas, these
designations became effective June 15, 2004. EPA designated, as
nonattainment, any area violating the 8-hour ozone NAAQS based on the
air quality for the three years of 2001-2003. These were the most
recent three years of data at the time EPA designated 8-hour areas. The
8-hour standard replaced the 1-hour standard on June 15, 2005 (69 FR
23996).
Currently, Virginia's Chapter 40 of the Regulations for the Control
and Abatement of Air Pollution contains a number of rules used to
enforce control measures designed to attain and maintain the ozone air
quality standard. The geographic applicability of these rules is
defined by establishing VOC and NOX emissions control areas
in a list located in 9 VAC 5-20-206. The Commonwealth of Virginia's
regulations establish VOC and NOX emissions control areas to
provide the legal mechanism to define the geographic areas in which
Virginia implements control measures to attain and maintain the air
quality standards for ozone. The emissions control areas may or may not
coincide with the nonattainment areas found in 9 VAC 5-20-204,
depending upon the necessity of the planning requirements. In order to
implement control measures to attain and maintain the air quality
standards for ozone, Virginia has proposed to expand the VOC and
NOX emissions control areas (9 VAC 5-20-206) and extend the
geographic applicability of the VOC and NOX regulatory rules
in Chapter 40 of the regulations into the new 8-hour nonattainment
areas. Accordingly, 9 VAC 5-20-206 is being amended to include those
counties and cities in the corresponding new 8-hour ozone nonattainment
areas that were not previously listed in 9 VAC 5-20-206. Most of these
Chapter 40 regulations will automatically apply within all of the new
VOC emissions control areas. Others have provisions that apply only to
certain existing VOC and NOX emission control areas. Each of
these rules is being amended individually in order to manage the
extension of applicability of these provisions to the additional VOC
and NOX emission control areas with coherence and
consistency.
II. Summary of SIP Revisions
On September 12, 2006, the Commonwealth of Virginia submitted a
revision to its SIP. This revision amends 9 VAC 5-20-206 of Chapter 20
of Virginia's Regulations for the Control and Abatement of Air
Pollution to establish a new Fredericksburg NOX and VOC
Emissions Control Area, consisting of Spotsylvania County, and
Fredericksburg City; to expand the Richmond VOC and NOX
Emissions Control Area to include Prince George County and Petersburg
City; and to expand the Hampton Roads VOC and NOX Emissions
Control Area to include Gloucester County and Isle of Wight County.
These amendments are necessary to include those counties and cities in
the corresponding new 8-hour ozone nonattainment areas that were not
previously listed in 9 VAC 5-20-206, and to implement VOC control and
contingency measures within the 8-hour ozone nonattainment areas and 1-
hour ozone maintenance areas.
On October 2, 2006, the Commonwealth of Virginia submitted a
revision to its SIP. This revision consists of amendments to
regulations found in Chapter 40 of Virginia's Regulations for the
Control and Abatement of Air Pollution that implement non-CTG and CTG
VOC reasonably available control technology (RACT) control requirements
within those areas that are designated as VOC emissions control areas
in 9 VAC 5-20-206.
As stated previously, most of the Chapter 40 rules will
automatically be extended into the new 8-hour nonattainment areas
automatically when the VOC emissions control areas in 9 VAC 5-20-206
are amended. Some Chapter 40 rules have provisions that apply only to
certain existing VOC and NOX emissions control areas. In
this revision, Articles 4, 36, 37, and 53 are being amended
individually in order to manage the extension of applicability of these
provisions to the additional VOC and NOX emission control
areas.
Article 4, Emission Standards for General Process Operations, is
being amended to ensure that VOC RACT is not automatically required
from large VOC sources in the new areas that were included in the
Richmond VOC Emissions Control Area (County of Prince George and City
of Petersburg). Article 4 currently applies in the Northern Virginia
and Richmond Emissions Control Areas designated in 9 VAC 5-20-206. With
the addition of Prince George County and Petersburg to the Richmond VOC
Emissions Control Area, VOC RACT would normally automatically apply to
all large existing sources in the County of Prince George and the City
of Petersburg. However, the Richmond 8-hour ozone nonattainment area
was reclassified from a moderate 8-hour ozone nonattainment area to a
marginal 8-hour ozone nonattainment area (69 FR 56697, September 22,
2004). EPA only requires existing sources in nonattainment areas that
are classified as moderate and above to implement VOC RACT.
Article 36, Packaging and Publishing Rotogravure Printing, and
Flexographic Printing, is being amended to provide exemptions for small
facilities in all VOC emissions control areas, other than the Northern
Virginia VOC Emissions Control Area, whose potential to emit is less
than 100 tons per year.
Article 37, Storage or Transfer of Petroleum Liquids, is being
amended to ensure that Stage II Vapor Recovery is not required at
gasoline dispensing stations in the new areas within the expanded
Richmond VOC Emissions Control Area--Petersburg City, and Prince George
County, since these areas were not part of the 1-hour ozone moderate
nonattainment area. This revision also removes applicability
redundancies resulting from this action and a previous amendment that
added the Western Virginia VOC Emissions Control Area (Botetourt
County, Frederick County, and Winchester City, 70 FR 21625, April 27,
2005).
Article 53, Emission Standards for Lithographic Printing Processes,
is being amended to apply in all VOC emissions control areas. The
amendment also exempts from the provisions of this Article, all
facilities in all VOC emissions control areas, other than the Northern
Virginia VOC Emissions Control Area, whose potential to emit is less
than 100 tons per year of VOCs. When EPA approved the lithographic
printing processes regulation into the Virginia SIP (62 FR 11334, March
12, 1997), it was codified under Article 45. In this action, EPA is
also recodifying the lithographic printing processes regulation (9 VAC
5-40-7800-7940, inclusive) from Article 45 to Article 53 to be
consistent with Virginia's regulations.
[[Page 77355]]
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 Clean Air Act, 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 Clean Air Act is likewise
unaffected by this, or any, state audit privilege or immunity law.
IV. Proposed Action
EPA is proposing to approve the Commonwealth of Virginia's SIP
revisions amending existing regulations pertaining to emissions control
areas, and the accompanying rule regulations, which were submitted on
September 12 and October 2, 2006. 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 Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a ``significant regulatory action'' and
therefore is not subject to review by the Office of Management and
Budget. For this reason, this action is also not subject to Executive
Order 13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)).
This action merely proposes to approve state law as meeting Federal
requirements and imposes no additional requirements beyond those
imposed by state law. Accordingly, the Administrator certifies that
this proposed rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-
existing requirements under state law and does not impose any
additional enforceable duty beyond that required by state law, it 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). This proposed rule also does not have a
substantial direct effect on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will it have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132 (64 FR 43255, August 10, 1999), because it
merely proposes to approve a state rule implementing a Federal
requirement, and does not alter the relationship or the distribution of
power and responsibilities established in the Clean Air Act. This
proposed rule also is not subject to Executive Order 13045 (62 FR
19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing
this proposed rule, EPA has taken the necessary steps to eliminate
drafting errors and ambiguity, minimize potential litigation, and
provide a clear legal standard for affected conduct. EPA has complied
with Executive Order
[[Page 77356]]
12630 (53 FR 8859, March 15, 1988) by examining the takings
implications of the rule in accordance with the ``Attorney General's
Supplemental Guidelines for the Evaluation of Risk and Avoidance of
Unanticipated Takings'' issued under the executive order.
This proposed rule, pertaining to amendments to existing regulation
provisions concerning Virginia's emissions control areas, and
accompanying regulatory changes, does not impose an information
collection burden under the provisions of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Nitrogen dioxide,
Ozone, Reporting and recordkeeping requirements, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 14, 2006
William T. Wisniewski,
Acting Regional Administrator, Region III.
[FR Doc. E6-22058 Filed 12-22-06; 8:45 am]
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