[Federal Register Volume 72, Number 233 (Wednesday, December 5, 2007)]
[Rules and Regulations]
[Pages 68511-68515]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-23386]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2007-0479; FRL-8500-9]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Amendments Extending the Applicability of Four Consumer and
Commercial Product Regulations to the Fredericksburg Volatile Organic
Compound (VOC) Emissions Control Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision
submitted by the Commonwealth of Virginia. This revision consists of
amendments to extend the geographic applicability of four consumer and
commercial product regulations--Portable Fuel Container Spillage,
Mobile Equipment Repair and Refinishing Operations, Architectural and
Industrial Maintenance Coatings, and Consumer Products--to the
Fredericksburg VOC Emissions Control Area. These amendments are
necessary to implement VOC contingency measures within the
Fredericksburg Area. The revision also incorporates by reference two
additional test methods and procedures needed for Virginia's
Architectural and Industrial Maintenance Coatings Rule. EPA is
approving this revision to the Virginia SIP in accordance with the
requirements of the Clean Air Act (CAA).
DATES: Effective Date: This final rule is effective on January 4, 2008.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2007-0479. All documents in the docket are listed in
the www.regulations.gov Web site. Although listed in the electronic
docket, some information is not publicly available, i.e., confidential
business information (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 through www.regulations.gov or in hard
copy for public inspection 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: Ellen Wentworth, (215) 814-2034, or by
e-mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On September 12, 2007 (72 FR 52028), EPA published a notice of
proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR
proposed the approval of amendments extending the geographic
applicability of four consumer and commercial product regulations to
the Fredericksburg VOC Emissions Control Area. The formal SIP revision
was submitted by the Commonwealth of Virginia on May 14, 2007.
II. Summary of the SIP Revision
The May 14, 2007 SIP revision contained regulation amendments to 9
VAC 5 Chapter 40 that extended the geographic applicability of four
consumer and commercial product regulations--Portable Fuel Container
Spillage, Mobile Equipment Repair and Refinishing, Architectural and
Industrial Maintenance Coatings, and Consumer Products--into the new
Fredericksburg VOC Emissions Control Area established in 9 VAC 5-20-206
(March 2, 2007, 72 FR 9441). These regulations had formerly applied
only in the Northern Virginia VOC Emissions Control Area, and were
based on the Ozone Transport Commission (OTC) model rules. The OTC
developed control measures into model rules for a
[[Page 68512]]
number of source categories and estimated emission reduction benefits
from implementing those model rules. These regulations are necessary to
implement VOC contingency measures within the Fredericksburg VOC
Emissions Control Area. The revision also adds six additional specialty
coatings to the Architectural and Industrial Maintenance Coatings
regulation. Other specific requirements of Virginia's SIP revision and
the rationale for EPA's proposed action are explained in the NPR and
will not be restated here. No public comments were received on the NPR.
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 Clean Air Act is likewise
unaffected by this, or any, state audit privilege or immunity law.
IV. Final Action
EPA is approving a revision to the Commonwealth of Virginia SIP,
extending the geographic applicability of four consumer and commercial
product regulations--Portable Fuel Container Spillage, Mobile Equipment
Repair and Refinishing Operations, Architectural and Industrial
Maintenance Coatings, and Consumer Products--to the Fredericksburg VOC
Emissions Control Area. EPA is also approving the incorporation by
reference of two additional test methods and procedures needed for
Virginia's architectural and Industrial Maintenance Coatings Rule.
V. Statutory and Executive Order Reviews
A. General Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
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 approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this 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 approves 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 rule also does not
have tribal implications because it will 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).
This action also does not have Federalism implications because it does
not 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).
This action merely approves a state rule implementing a Federal
requirement, and does not alter the relationship or the distribution of
power and responsibilities established in the CAA. This rule also is
not subject to Executive Order 13045 ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), because it approves a state rule implementing a Federal
standard.
[[Page 68513]]
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the CAA. 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 CAA. 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. This rule does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
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 rule 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. This rule 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 February 4, 2008. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule 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, expanding the geographic applicability of four consumer
and commercial product regulations to the Fredericksburg VOC Emissions
Control Area, 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, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
Dated: November 20, 2007.
Donald S. Welsh,
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 revising
the entries for Chapter 40, Part II, Sections 5-40-5700, 5-40-5720, 5-
40-5750, 5-40-6970, 5-40-7050, 5-40-7120, 5-40-7130, 5-40-7140, 5-40-
7210, 5-40-7240, 5-40-7250, 5-40-7260, 5-40-7270, 5-40-7300, 5-40-7330,
and 5-40-7360. The table in paragraph (e) is amended by adding an entry
for Documents Incorporated by Reference after the eighth existing entry
for Documents Incorporated by Reference. The amendments read as
follows:
Sec. 52.2420 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Virginia Regulations and Statutes
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State Explanation [former
State citation (9 VAC 5) Title/subject effective date EPA approval date SIP citation]
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* * * * * * *
Chapter 40 Existing Stationary Sources (Part IV)
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* * * * * * *
Part II Emissions Standards
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* * * * * * *
Article 42 Portable Fuel Container Spillage (Rule 4-42)
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5-40-5700.................. Applicability and 10/04/06 12/05/07 [Insert page Revision extends the
designation of number where the applicability to
affected facility. document begins]. include the
Fredericksburg VOC
Emissions Control
Area.
* * * * * * *
5-40-5720.................. Standard for volatile 10/04/06 12/05/07 [Insert page
organic compounds. number where the
document begins].
* * * * * * *
5-40-5750.................. Compliance schedules. 10/04/06 12/05/07 [Insert page
number where the
document begins].
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[[Page 68514]]
* * * * * * *
Article 48 Mobile Equipment Repair and Refinishing Operations (Rule 4-48)
----------------------------------------------------------------------------------------------------------------
5-40-6970.................. Applicability and 10/04/06 12/05/07 [Insert page Revision extends the
designation of number where the applicability to
affected facility. document begins]. include the
Fredericksburg VOC
Emissions Control
Area
* * * * * * *
5-40-7050.................. Compliance schedule.. 10/04/06 12/05/07 [Insert page
number where the
document begins].
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----------------------------------------------------------------------------------------------------------------
* * * * * * *
Article 49 Architectural and Industrial Maintenance Coatings (Rule 4-49)
----------------------------------------------------------------------------------------------------------------
5-40-7120.................. Applicability and 10/04/06 12/05/07 [Insert page Revision extends the
designation of number where the applicability to
affected facility. document begins]. include the
Fredericksburg VOC
Emissions Control
Area.
5-40-7130.................. Definitions.......... 10/04/06 12/05/07 [Insert page Revision adds
number where the definitions for the
document begins]. following: ASTM,
Calcimine
recoater,Concrete
surface retarder,
Conversion varnish,
Impacted immersion
coating, Nuclear
coatings, and
Thermoplasftic
rubber coating and
mastic.
5-40-7140.................. Standard for volatile 10/04/06 12/05/07 [Insert page Revision adds
organic compounds. number where the standards for the
document begins]. following
categories:
Calcimine recoaters,
Conversion
varnishes, Concrete
surface retarder,
Impacted immersion
coatings, Nuclear
coatings, and
Thermoplastic rubber
coating and mastic.
* * * * * * *
5-40-7210.................. Compliance schedules. 10/04/06 12/05/07 [Insert page
number where the
document begins].
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* * * * * * *
Article 50 Consumer Products (Rule 4-50)
----------------------------------------------------------------------------------------------------------------
5-40-7240.................. Applicability........ 10/04/06 12/05/07 [Insert page Revision extends the
number where the applicability to
document begins]. include the
Fredericksburg VOC
Emissions Control
Area.
5-40-7250.................. Exemptions........... 10/04/06 12/05/07 [Insert page
number where the
document begins].
5-40-7260.................. Definitions.......... 10/04/06 12/05/07 [Insert page
number where the
document begins].
5-40-7270.................. Standard for volatile 10/04/06 12/05/07 [Insert page
organic compounds. number where the
document begins].
* * * * * * *
5-40-7300.................. Administrative 10/04/06 12/05/07 [Insert page
requirements. number where the
document begins].
* * * * * * *
5-40-7330.................. Compliance schedules. 10/04/06 12/05/07 [Insert page
number where the
document begins].
* * * * * * *
5-40-7360.................. Notification, records 10/04/06 12/05/07 [Insert page
and reporting. number where the
document begins].
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(e) * * *
* * * * *
[[Page 68515]]
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Name of non-regulatory SIP Applicable State Additional
revision geographic area submittal date EPA approval date Explanation
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* * * * * * *
Documents Incorporated by Fredericksburg VOC 05/14/07 12/05/07 [Insert State effective
Reference (9 VAC 5-20-21, Emissions Control page number where date is 10/04/06.
Paragraphs E.4.a. (21) and Area Designated in the document
(22)).. 9 VAC 5-20-206. begins].
* * * * * * *
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[FR Doc. E7-23386 Filed 12-4-07; 8:45 am]
BILLING CODE 6560-50-P