[Federal Register Volume 72, Number 176 (Wednesday, September 12, 2007)]
[Proposed Rules]
[Pages 52028-52031]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-17977]
[[Page 52028]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2007-0479; FRL-8466-1]
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: 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
extends the 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 VOC Emissions Control
Area. This action is being taken under the Clean Air Act.
DATES: Written comments must be received on or before October 12, 2007.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2007-0479 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-2007-0479, Marilyn Powers, Acting 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-
2007-0479. 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: Ellen Wentworth, (215) 814-2034 or by
e-mail at [email protected].
SUPPLEMENTARY INFORMATION: On May 14, 2007, the Virginia Department of
Environmental Quality (VADEQ) submitted a formal revision to its SIP.
This SIP revision consists of amendments to 9 VAC 5 Chapter 20, Part I,
Administrative, 9 VAC 5-20-21, Documents Incorporated by Reference, and
amendments to 9 VAC 5 Chapter 40, Part II, Emission Standards, Articles
42, 48, 49, and 50.
I. Background
Chapter 40 of Virginia's 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 nitrogen oxide (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. Most of the
Chapter 40 regulations automatically apply within all of the VOC
emissions control areas. Some Chapter 40 rules (Articles 4, 36, 37, and
53) have provisions that apply only to certain existing VOC and
NOX emission control areas. Other Chapter 40 regulations
were originally adopted to apply only within certain emission control
areas.
The original ozone air quality standard was a 1-hour standard.
Three VOC and NOX emission control areas, Northern Virginia,
Hampton Roads, and Richmond, were established in Virginia in order to
implement control measures to attain the 1-hour ozone air quality
standard. 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), EPA designated and classified areas for the 8-hour ozone
national ambient air quality standards (NAAQS). For most areas, these
designations became effective June 15, 2004. EPA designated, as
nonattainment, any area violating the 8-hour ozone NAAQS based upon the
air quality data for the three years of 2001-2003. These were the most
recent three years of data available at the time EPA designated 8-hour
areas. The 8-hour standard replaced the 1-hour standard on June 15,
2005 (69 FR 23996). Accordingly, the Virginia State Air Pollution
Control Board promulgated the State 8-hour ozone nonattainment areas
that took effect on August 25, 2004. In order to implement control
measures to attain and maintain the air quality standards for ozone,
the Board proposed to expand the VOC and NOX emissions
control areas in 9 VAC 5-20-206, and extend
[[Page 52029]]
the geographic applicability of the VOC and NOX regulatory
rules in Chapter 40 of the regulations into the new 8-hour
nonattainment areas. On March 2, 2007 (72 FR 9441), EPA published a
final rulemaking which established a new Fredericksburg VOC Emissions
Control Area, consisting of Spotsylvania County and Fredericksburg
City, and expanded the Richmond and Hampton Roads VOC and
NOX Emission Control Areas. On December 23, 2005 (70 FR
76165) EPA redesignated the 8-hour Fredericksburg nonattainment area to
attainment for the 8-hour NAAQS. This revision consists of regulation
amendments that extend the applicability of four consumer and
commercial product regulations into the new Fredericksburg VOC
Emissions Control Area. These amendments are necessary to implement VOC
contingency measures of the maintenance plan for the Fredericksburg VOC
Emissions Control Area.
II. Summary of the SIP Revision
The May 14, 2007 SIP revision contains amendments to 9 VAC 5-20-21,
which incorporate by reference, two additional test methods and
procedures needed for 9 VAC 5 Chapter 40, Article 49, Architectural and
Industrial Maintenance Coatings. These are the American Society for
Testing and Materials (ASTM) D3912-95, ``Standard Test Method for
Chemical Resistance of Coatings Used in Light-Water Nuclear Power
Plants;'' and the American Society for Testing and Materials (ASTM) D
4082-02, ``Standard Test Method for Effects of Gamma Radiation on
Coatings for Use in Light-Water Nuclear Power Plants.''
The May 14, 2007 revision also contains regulation amendments to 9
VAC 5 Chapter 40 that extend the applicability of four consumer and
commercial product regulations into the new Fredericksburg VOC
Emissions Control Area established in 9 VAC 5-20-206 (March 2, 2007, 72
FR 9441). These regulations presently apply 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 number of source categories and
estimated emission reduction benefits from implementing those model
rules. These amendments to Chapter 40 are discussed below.
(1) Emission Standards for Portable Fuel Container Spillage, Article 42
Virginia's Portable Fuel Container Spillage regulation is being
amended to apply within the new Fredericksburg VOC Emissions Control
Area. At the present time this regulation applies only to sources
located in the Northern Virginia VOC Emissions Control Area (June 8,
2004, 69 FR 31893). The provisions of this regulation apply to any
source or person who sells, supplies, offers for sale, or manufactures
for sale portable fuel containers or spouts in the Northern Virginia
and Fredericksburg VOC Emissions Control Areas designated in 9 VAC 5-
20-206. The regulation does not apply to any portable fuel container or
spout manufactured for shipment, sale and use outside of the Northern
Virginia and Fredericksburg VOC Emission Control Areas. The regulation
requires each portable fuel container or spout sold in the Northern
Virginia and Fredericksburg VOC Emission Control Areas to meet the
following requirements: (1) Have an automatic shut-off and closure
device; (2) contain one opening for both filling and pouring; (3) meet
minimal fuel flow rate based on nominal capacity; (4) meet a permeation
standard; and (5) have a manufacturer's warranty against defects. The
regulation includes exemptions, standards, testing procedures,
recordkeeping, and administrative requirements. Compliance with the
provisions of this regulation is required no later than January 1, 2008
in the Fredericksburg VOC Emissions Control Area.
(2) Emission Standards for Mobile Equipment Repair and Refinishing,
Article 48
Virginia's Mobile Equipment Repair and Refinishing regulation is
being amended to apply within the new Fredericksburg VOC Emissions
Control Area. At the present time, this regulation applies only to
sources located in the Northern Virginia VOC Emissions Control Area
(June 24, 2004, 69 FR 35253). The provisions of this regulation apply
to each mobile equipment repair and refinishing operation located in
the Northern Virginia and Fredericksburg VOC Emissions Control Areas
designated in 9 VAC 5-20-206. Certain provisions also apply to each
person providing or selling affected coatings. The provisions of this
regulation do not apply if the mobile equipment repair and refinishing
operation is subject to Article 28 (9 VAC 5-40-3860 et seq.) of Chapter
40, Emission Standards for Automobile and Light Duty Truck Application
Systems, or Article 34 (9 VAC 5-40-4760 et seq.) of Chapter 40,
Emission Standards for Miscellaneous Metal Parts and Products Coating
Application Systems. The provisions of this regulation also do not
apply to persons applying the coatings who do not receive compensation
for the application of the coatings, and to mobile equipment repair and
refinishing operations that use coatings required to meet military
specifications (MILSPEC) where no other existing coating can be used
that meets the provisions of this regulation. Also included in the
regulation are definitions, standards for VOCs, compliance, test
methods and procedures, monitoring, and reporting and recordkeeping
requirements. Compliance with the provisions of this regulation is
required no later than January 1, 2008 in the Fredericksburg VOC
Emissions Control Area.
(3) Emission Standards for Architectural and Industrial Maintenance
Coatings, Article 49
Virginia's Architectural and Industrial Maintenance (AIM) Coatings
regulation is being amended to apply within the new Fredericksburg VOC
Emissions Control Area. At the present time, this regulation applies
only to sources located in the Northern Virginia VOC Emissions Control
Area (May 12, 2005, 70 FR 24970). This regulation applies to any person
who supplies, sells, offers for sale, or manufacturers any
architectural coating for use, as well as any person who applies or
solicits the application of any architectural coating, located in the
Northern Virginia and Fredericksburg VOC Emissions Control Areas
designated in 9 VAC 5-20-206. The provisions of this regulation do not
apply to the following: (1) Any architectural coating that is sold or
manufactured for use exclusively outside of the Northern Virginia and
Fredericksburg VOC Emission Control Areas, or for shipment to other
manufacturers for reformulation or repackaging; (2) any aerosol coating
product; or (3) any architectural coating that is sold in a container
with a volume of one liter (1.057 quart) or less. The regulation is
also being amended to add standards and definitions for six new coating
categories: calcimine recoaters, conversion varnishes, concrete surface
retarder, impacted immersion coatings; nuclear coatings; and
thermoplastic rubber coating and mastic. These new coatings are listed
in the Federal AIM regulation (63 FR 48848, September 11, 1998).
Virginia's regulation sets specific VOC content limits in grams per
liter for architectural and industrial maintenance coatings, and
contains administrative requirements for labeling and reporting. There
are a number of test methods that would be used to demonstrate
compliance with this rule. Some of these test methods include those
promulgated by EPA and published by the South Coast and Bay
[[Page 52030]]
Area Air Quality Management Districts of California, as well as the
American Society for Testing and Materials. The test methods used to
test coatings must be the most current approved method at the time
testing is performed. Compliance with the provisions of this regulation
is required no later than January 1, 2008 in the Fredericksburg VOC
Emissions Control Area.
(4) Emission Standards for Consumer Products, Article 50
Virginia's Consumer Products Regulation is being amended to apply
within the new Fredericksburg VOC Emissions Control Area. At the
present time, this regulation applies only to sources located in the
Northern Virginia VOC Emissions Control Area (January 30, 2007, 72 FR
4207). The rule applies to a person who sells, supplies, offers for
sale, or manufactures consumer products that contain VOCs as defined in
9 VAC 5-10-20 throughout the Northern Virginia and Fredericksburg VOC
Emissions Control Areas designated in 9 VAC 5-20-206. This regulation
limits VOC emissions from consumer products such as adhesives, adhesive
removers, aerosol products, air fresheners, 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.
This regulation does not apply to any consumer product manufactured in
the Northern Virginia and Fredericksburg VOC Emissions Control Areas
designated in 9 VAC 5-40-7240 for shipment and use outside of these
areas. The provisions also do 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 specified in 9 VAC 5-40-
7270 A, as long as the manufacturer or distributor can demonstrate that
both the consumer product is intended for shipment and use outside of
the Northern Virginia and Fredericksburg VOC Emission Control Areas,
and that the manufacturer or distributor has taken reasonable prudent
precautions to assure that the consumer product is not distributed to
those applicable VOC control areas. The regulation sets specific VOC
content limits in percent VOCs by weight for consumer products.
Exemptions from the VOC content limits are listed in the rule. Also
included in the regulation are definitions, innovative products,
standards and exemptions, requirements for waiver requests,
administrative requirements for labeling and reporting, test methods
for demonstrating compliance, compliance schedules, alternative control
plans, monitoring, and reporting and recordkeeping requirements.
Compliance with the provisions of this regulation is required no later
than January 1, 2008 in the Fredericksburg VOC Emissions Control Area.
Article 49 is also being amended to revise the definition of
``Automotive windshield washer fluid,'' to allow the higher VOC
automotive windshield washer fluid standards to also be applied to some
manual automotive windshield washing systems so that they may be used
in winter.
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 Virginia SIP revision submitted on
May 14, 2007 for regulation amendments to 9 VAC 5 Chapter 20 that
incorporate by reference test methods and procedures needed for 9 VAC 5
Chapter 40, Article 49, Emission Standards for Architectural and
Industrial Maintenance Coatings, and regulation amendments to Chapter
40 that extend the applicability of four consumer and commercial
product regulations into the new Fredericksburg VOC Emissions
[[Page 52031]]
Control Area. These amendments are necessary to implement VOC
contingency measures within the Fredericksburg 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 (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 approves a state rule implementing a
Federal standard.
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, extending the applicability of four consumer
and commercial product regulations into the new Fredericksburg 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: August 30, 2007.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. E7-17977 Filed 9-11-07; 8:45 am]
BILLING CODE 6560-50-P