[Federal Register Volume 71, Number 20 (Tuesday, January 31, 2006)]
[Proposed Rules]
[Pages 5035-5037]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-1210]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2005-VA-0017; FRL-8026-7]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Emission Standards for Consumer Products in the Northern
Virginia Volatile Organic Compound Emissions Control Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP)
revision submitted by the Commonwealth of Virginia. This revision
pertains to the emission standards for consumer products sold and used
in the Northern Virginia volatile organic compound (VOC) emissions
control area. This action is being taken under the Clean Air Act (CAA
or the Act).
DATES: Written comments must be received on or before March 2, 2006.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2005-VA-0017 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-2005-VA-0017, 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-
2005-VA-0017. 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: Rose Quinto, (215) 814-2182, or by e-
mail at [email protected].
SUPPLEMENTARY INFORMATION: On October 25, 2005, the Virginia Department
of Environmental Quality (VADEQ) submitted a formal revision to its
State Implementation Plan (SIP). This SIP revision consists of (1)
amendments to 9 VAC 5 Chapter 20, Part I, Administrative, 9 VAC 5-20-
21, Documents Incorporated by Reference; and (2) new regulation 9 VAC 5
Chapter 40, Part II, Emission Standards, Article 50--Consumer Products,
9VAC 5-40-7240 through 9 VAC 5-40-7360.
I. Background
The standards and requirements contained in Virginia's consumers
products rule are based on the Ozone Transport Commission (OTC) model
rule. The OTC consumer products model rule is based on the existing
rules developed by the California Air Resources Board, which were
analyzed and modified by the OTC workgroup to address VOC reduction
needs in the Ozone Transport Region (OTR). The OTR consists of
Delaware, Maine, New Hampshire, Vermont, Massachusetts, Connecticut,
Rhode Island, New York, New Jersey, Pennsylvania, Maryland, the
District of Columbia, and Virginia.
II. Summary of SIP Revision
Amendments to 9 VAC 5-20-21 incorporate by reference additional
test methods and procedures needed for 9 VAC 5 Chapter 40, Consumer
Products: (1) 40 CFR 59 Subpart C, National Volatile Organic Compound
Emission Standards for Consumer Products; (2) American Society for
Testing and Materials (ASTM) D86-01, Standard Test Method for
Distillation of Petroleum Products at Atmospheric Pressure, 2001; (3)
ASTM D4359-90, Standard Test Method for Determining Whether a Material
Is a Liquid or a Solid, 2000; (4) ASTM E260-96, Standard Practice for
Packed Column Gas Chromatography, 2001; (5) South Coast Air Quality
Management District Rule 1174, Ignition Method Compliance Certification
Protocol, February 28, 1991; (6) California Air Resources Board (CARB)
Test Method 310 (including Appendices A and B), Determination of VOCs
in Consumer Products and Reactive Organic Compounds in Aerosol Coating
Products, July 18, 2001; (7) California Code of Regulations, Title 17,
Division 3, Chapter 1, Subchapter 8.5, Article 1, section 94503.5,
Article 2, sections 94509 and 94511, Article 4, sections 94540-94555,
2003; and (8) American Furniture Manufacturer Association Joint
Industry Fabrics Standards Committee, Woven and Knit Residential
Upholstery Fabric Standards and Guidelines, January 2001.
Virginia's consumer products rule (9 VAC 5 Chapter 40) applies only
to sources in the Northern Virginia VOC emissions control area
designated in 9 VAC 5-20-206. This rule limits VOC emissions from
consumer products such as adhesives, adhesive removers, aerosol
products (like cooking and dusting sprays), air freshener,
antiperspirants and deodorants, facial toners and astringents, waxes
and polishes (for cars and floors, etc.), tile cleaners, tar removers,
bug sprays, rug cleaners, charcoal lighter fluid, disinfectants,
cosmetics and soaps. The compliance date for this rule is July 1, 2005.
Rule 9 VAC 5 Chapter 40 applies to any person who sells, supplies,
offers for sale, or manufactures consumer products that contain VOC.
Exempted from the rule is any consumer product
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manufactured in the Northern Virginia VOC emissions control area for
shipment and use outside of this area. The rule does not apply to a
manufacturer or distributor who sells, supplies, or offers for sale a
consumer product that does not comply with the VOC standards as long as
the manufacturer or distributor can demonstrate both that the consumer
product is intended for shipment and use outside of the Northern
Virginia VOC emissions control area, and that the manufacturer or
distributor has taken reasonable prudent precautions to assure that the
consumer product is not distributed to the Northern Virginia VOC
emissions control area. The rule sets specific VOC content limits in
percent VOCs by weight for consumer products with a compliance date of
July 1, 2005. Exemptions from the VOC content limits are listed in the
rule. The rule also contains requirements for the following consumer
products: (1) Products requiring dilution, (2) ozone depleting
compounds, (3) aerosol adhesives, (4) antiperspirants or deodorants,
(5) charcoal lighter materials, and (6) floor wax strippers.
Alternative control plans (ACP) are also provided by allowing
responsible parties the option to voluntarily enter into separate ACP
agreements for the consumer products mentioned above. Criteria for
innovative products exemption and requirements for waiver requests are
listed in the rule. In addition, the rule contains administrative
requirements for labeling and reporting as well as test methods for
demonstrating compliance. The test methods used to test coatings must
be the most current approved method at the time testing is performed.
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's review of this material indicates that the standards and
requirements contained in the Virginia's consumer products rule, 9 VAC
5 Chapter 40, are consistent with the OTC model rule. EPA is proposing
to approve the Virginia SIP revision submitted on October 25, 2005 for
the new regulation, 9 VAC 5 Chapter 40, and the amendments to 9 VAC 5-
20-21 that incorporates by reference test methods and procedures needed
for 9 VAC 5 Chapter 40. The implementation of this rule will result in
the reduction of VOC emissions from consumer products in the Northern
Virginia VOC emissions control area. 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 (Public Law 104-4). This proposed rule
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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 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 the emission standards for
consumer products in the Northern Virginia VOC emissions control area,
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, Ozone, Reporting
and recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: January 23, 2006.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. E6-1210 Filed 1-30-06; 8:45 am]
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