[Federal Register Volume 72, Number 19 (Tuesday, January 30, 2007)]
[Rules and Regulations]
[Pages 4207-4210]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-1337]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2005-VA-0017; FRL-8273-9]
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: Final rule.
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SUMMARY: EPA is approving 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. EPA is approving this SIP revision in accordance with the Clean
Air Act (CAA or Act).
EFFECTIVE DATE: This final rule is effective on March 1, 2007.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2005-VA-0017. All documents in the docket are listed
in the http://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: Rose Quinto, (215) 814-2182, or by e-
mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On January 31, 2006 (71 FR 5035), EPA published a notice of
proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR
proposed approval of a new rule, 9 VAC 5 Chapter 40, Consumer Products
(9 VAC 5-40-7240 through 9 VAC 5-40-7360); and the amendments to 9 VAC
5-20-21 that incorporate by reference test methods and procedures
needed for 9 VAC 5 Chapter 40. The formal SIP revision was submitted by
the Virginia Department of Environmental Quality (VADEQ) on October 25,
2005.
II. Summary of SIP Revision
The Virginia 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. The rule applies to a person who sells,
supplies, offers for sale, or manufactures consumer products on or
after July 1, 2005. Also included in the rule are definitions, the VOC
content limits, standards and exemptions, innovative products,
requirements for waiver requests, administrative requirements for
labeling and reporting, test methods for demonstrating compliance,
compliance schedules, an alternative control plan, monitoring, and
reporting and recordkeeping requirements.
Amendments to 9 VAC 5-20-21 incorporate by reference additional
test methods and procedures needed for 9 VAC 5 Chapter 40.
Other specific requirements of 9 VAC 5 Chapter 40, amendments to 9
VAC 5-20-21, and the rationale for EPA's proposed action are explained
in the NPR and will not be restated here. On February 2, 2006, EPA
received a single comment on its January 31, 2006 NPR. A summary of the
comment submitted and EPA's response is provided in Section III of this
document.
III. Summary of Public Comments and EPA Responses
Comment: A commenter pointed out that one of its test methods
referenced in the State regulation had been revised and renumbered.
Response: The commenter merely points out that one test method that
the rule incorporates has been revised and renumbered. The commenter
does not request that EPA disapprove the rule, nor allege that the
current regulation incorporating the earlier version of the test method
is in any way adequate. Therefore, EPA concludes that the information
provided by the commenter does not change EPA's proposal to approve the
SIP revision.
IV. 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
[[Page 4208]]
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.
V. Final Action
EPA is approving the Virginia SIP revision submitted on October 25,
2005 for the new regulation, 9 VAC 5 Chapter 40--Consumer Products, and
the amendments to 9 VAC 5-20-21 that incorporates by reference test
methods and procedures needed for 9 VAC 5 Chapter 40.
VI. 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 Clean Air Act. 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 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. 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 Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by April 2, 2007. 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 pertaining to the Virginia consumer products rule, 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, Ozone, Reporting
and
[[Page 4209]]
recordkeeping requirements, Volatile organic compounds.
Dated: January 18, 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 part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart VV--Virginia
0
2. Section 52.2420 is amended as follows:
0
a. The table in paragraph (c) is amended by adding an entry for Chapter
40, Part II, Article 50.
0
b. The table in paragraph (e) is amended by adding an entry for
``Documents Incorporated by Reference'' at the end of the table.
Sec. 52.2420 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Virginia Regulations and Statutes
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State
State citation (9 VAC 5) Title/subject effective EPA approval date Explanation [former
date SIP citation]
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* * * * * * *
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Chapter 40 Existing Stationary Sources
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* * * * * * *
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Part II Emission Standards
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* * * * * * *
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Article 50 Consumer Products (Rule 4-50)
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5-40-7240......................... Applicability....... 3/9/05 January 30, 2007
[Insert page number
where the document
begins].
5-40-7250......................... Exemptions.......... 3/9/05 January 30, 2007
[Insert page number
where the document
begins].
5-40-7260......................... Definitions......... 3/9/05 January 30, 2007
[Insert page number
where the document
begins].
5-40-7270......................... Standard for 3/9/05 January 30, 2007
volatile organic [Insert page number
compounds. where the document
begins].
5-40-7280......................... Alternative control 3/9/05 January 30, 2007
plan (ACP) for [Insert page number
consumer products. where the document
begins].
5-40-7290......................... Innovative Products. 3/9/05 January 30, 2007
[Insert page number
where the document
begins].
5-40-7300......................... Administrative 3/9/05 January 30, 2007
requirements. [Insert page number
where the document
begins].
5-40-7320......................... Compliance.......... 3/9/05 January 30, 2007
[Insert page number
where the document
begins].
5-40-7330......................... Compliance schedules 3/9/05 January 30, 2007
[Insert page number
where the document
begins].
5-40-7340......................... Test methods and 3/9/05 January 30, 2007
procedures. [Insert page number
where the document
begins].
5-40-7350......................... Monitoring.......... 3/9/05 January 30, 2007
[Insert page number
where the document
begins].
5-40-7360......................... Notification, 3/9/05 January 30, 2007
records and [Insert page number
reporting. where the document
begins].
* * * * * * *
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* * * * *
(e) * * *
[[Page 4210]]
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State
Name of non-regulatory SIP Applicable submittal EPA approval date Additional
revision geographic area date Explanation
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* * * * * * *
Documents Incorporated by Northern Virginia 10/25/05 January 30, 2007 State effective date
Reference. VOC Emissions [Insert page number is 3/9/05
Control Area where the document 9 VAC 5-20-21,
designated in 9 VAC begins]. Sections
5-20-206. E.1.a.(16).,
E.4.a.(18) through
a.(20), E.6.a,
E.11.a.(3),
E.12.a.(5) through
a.(8), E.14.a. and
E.14.b.
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[FR Doc. E7-1337 Filed 1-29-07; 8:45 am]
BILLING CODE 6560-50-P