[Federal Register Volume 74, Number 211 (Tuesday, November 3, 2009)]
[Proposed Rules]
[Pages 56754-56756]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-26340]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2008-0780; FRL-8976-5]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Amendments to Existing Regulation Provisions Concerning Case-
by-Case Reasonably Available Control Technology
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 SIP revision
consists of amendments to the Commonwealth's existing regulations in
order to clarify and recodify provisions covering case-by-case
reasonably available control technology (RACT), as well as to add the
1997 8-hour ozone standard RACT requirements to the Commonwealth's
regulations. This action is being taken under the Clean Air Act (CAA).
DATES: Written comments must be received on or before December 3, 2009.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2008-0780 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-2008-0780, Cristina Fernandez, 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-
2008-0780. 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
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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: Gregory Becoat, (215) 814-2036, or by
e-mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On September 8, 2008, the Commonwealth of Virginia submitted a
regulation revision for case-by-case RACT determinations, which
consists of amendments to the existing regulations in order to
implement the non-control techniques guidelines RACT specific 8-hour
ozone nonattainment area requirements of subpart X of 40 CFR Part 51,
and to restructure and recodify the regulations for clarity. In
addition to clarifying and recodifying the existing provisions covering
case-by-case RACT determinations, the regulation amendments create a
new Rule 4-51 (Article 51 of 9 VAC 5 Chapter 40)--Emission Standards
for Stationary Sources Subject to Case-by-Case RACT Determinations, in
order to separate the RACT specific requirements from the general
process requirements of Article 4 of 9 VAC 5 Chapter 40. These
amendments consisted only of changes in style or form.
The regulation amendments also add the 1997 8-hour ozone standard
requirements set forth by the CAA. Subpart X of 40 CFR Part 51
specifically defines the provisions for implementation of the 8-hour
ozone national ambient air quality standard (NAAQS). The rule specifies
dates by when states must submit their RACT SIPs, and when RACT must be
implemented. The rule also requires that nonattainment areas meet the
requirements of 40 CFR 51.900(f), which includes RACT and major source
applicability cut-offs for purposes of RACT.
II. Summary of SIP Revision
Further details of the Commonwealth of Virginia's regulation
revisions can be found in a Technical Support Document prepared for
this rulemaking. This SIP revision consists of the following changes:
1. Addition of Rule 4-51--Emission Standards for Stationary Sources
Subject to Case-by-Case RACT Determinations, in order to separate the
RACT specific requirements from the general process requirements of
Article 4 of 9 VAC 5 Chapter 40.
2. Administrative wording changes to regulations 9 VAC 5-40-250A.
and 9 VAC 5-40-250B.
3. Deletion of definition of ``Reasonably available control
technology'' in 9 VAC 5-40-250C. and addition of the definition to 9
VAC 5-40-7380 in Article 51 of 9 VAC 5 Chapter 40.
4. Addition of the following definitions to regulation 9 VAC 5-40-
7380C.--Terms defined: ``Presumptive RACT,'' ``Theoretical potential to
emit'' and ``Tpy.''
5. All the definitions in regulation 9 VAC 5-40-311B.3--Terms
defined, were deleted and added to 9 VAC 5-40-7380C. in Article 51 of 9
VAC 5 Chapter 40.
6. Repealed regulations 9 VAC 5-40-300--Standard for volatile
organic compounds, 9 VAC 5-40-310--Standard for nitrogen oxides, and 9
VAC 5-40-311--Reasonably available control technology guidelines for
stationary sources of nitrogen oxides, in Article 4 of 9 VAC 5 Chapter
40 and replaced them with 9 VAC 5-40-7390--Standard for volatile
organic compounds (one-hour standard), 9 VAC 5-40-7410--Standard for
nitrogen oxides (one-hour ozone standard), and 9 VAC 5-40-7430--
Presumptive reasonably available control technology guidelines for
stationary sources of nitrogen oxides, respectively, in Article 51 of 9
VAC 5 Chapter 40.
7. Addition of the 1997 8-hour ozone standard requirements for RACT
in regulations 9 VAC 5-40-7400--Standard for volatile organic compounds
(eight-hour ozone standard) and 9 VAC 5-40-7420--Standard for nitrogen
oxides (eight-hour ozone standard).
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
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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 CAA 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 that
clarifies and recodifies provisions covering case-by-case RACT, as well
as adds the 1997 8-hour ozone standard requirements to the
Commonwealth's regulations. EPA views the administrative changes and
re-codifications as non-substantive, as they do not affect the scope of
the currently approved Virginia SIP, and consequently, cannot interfere
with timely attainment or progress towards attainment of a NAAQS, nor
interfere with any other provision of the CAA. However, regulation 9
VAC 5-40-7420F. and G. incorrectly cross-references the Commonwealth's
VOC regulations at 9 VAC 5-40-7390, instead of its nitrogen oxides
regulation at 9 VAC 5-40-7410. The Commonwealth is in the process of
correcting the cross-references in this regulation and will submit the
correction to EPA. EPA does not intend to finalize this action until
after the Commonwealth formally submits the corrected versions of 9 VAC
5-40-7420F. and G. to EPA as part of this SIP revision. EPA does not
intend to reopen the comment period before taking final action on this
SIP revision. 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 the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the Clean Air Act. Accordingly,
this action merely proposes to approve state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
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);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rule, pertaining to amendments to
Virginia's case-by-case RACT determinations, does not have tribal
implications as specified by Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is not approved to apply in Indian
country located in the state, and EPA notes that it will not impose
substantial direct costs on tribal governments or preempt tribal law.
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: October 22, 2009.
William C. Early,
Acting Regional Administrator, Region III.
[FR Doc. E9-26340 Filed 11-2-09; 8:45 am]
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