[Federal Register: June 8, 2004 (Volume 69, Number 110)]
[Rules and Regulations]
[Page 31893-31897]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08jn04-14]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[VA 148-5078a; FRL-7671-1]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; VOC Emission Standards for Portable Fuel Containers in the
Metropolitan Washington, DC Ozone Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action to approve revisions to the
Commonwealth of Virginia State Implementation Plan (SIP). Specifically,
EPA is approving new emission standards for portable fuel containers or
spouts sold, supplied, offered for sale, or manufactured for sale in
the Northern Virginia portion of the Metropolitan Washington, DC ozone
nonattainment area (Northern Virginia area). EPA is approving the new
portable fuel container standards to reduce emissions of volatile
organic compounds (VOC) in accordance with the requirements of the
Clean Air Act (CAA).
DATES: This rule is effective on August 9, 2004 without further notice,
unless EPA receives adverse written comment by July 8, 2004. If EPA
receives such comments, it will publish a timely withdrawal of the
direct final rule in the Federal Register and inform the public that
the rule will not take effect.
ADDRESSES: Submit your comments, identified by VA148-5078 by one of the
following methods:
A. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the on-line instructions for submitting comments.
B. E-mail: morris.makeba@epa.gov.
[[Page 31894]]
C. Mail: 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. VA148-5078.
EPA's policy is that all comments received will be included in the
public docket without change, 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 regulations.gov or e-
mail. The Federal regulations.gov website 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
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.
Copies of the documents relevant to this action are available 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; and the Virginia Department
of Environmental Quality, 629 East Main Street, Richmond, Virginia
23219.
FOR FURTHER INFORMATION CONTACT: Marilyn Powers, (215) 814-2308, or by
e-mail at powers.marilyn@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On January 24, 2003 (68 FR 3410), EPA issued a determination that
the Metropolitan Washington, DC ozone nonattainment area (DC Area)
failed to attain the ozone standard by the statutory date of November
15, 1999, and reclassified the area from ``serious'' to ``severe'' for
one-hour ozone. As a severe nonattainment area, the DC Area must now
meet the requirements of section 182(d) of the CAA, and attain the one-
hour ozone standard by November 15, 2005. As a result of the
reclassification to severe nonattainment, the states that comprise the
DC Area (Maryland, Virginia, and District of Columbia) must implement
additional control measures and submit SIP revisions for post-1999 Rate
of Progress Plans, revisions to Contingency Plans, and revisions to the
Attainment demonstration.
As part of Virginia's strategy to meet its portion of emission
reduction keyed to the post-1999 ROPs, the 2005 attainment
demonstration, and/or the contingency plan, the state adopted new
measures to control volatile organic compound (VOC) emissions from four
additional source categories, including a regulation to control
emissions from portable fuel containers.
On February 23, 2004, the Commonwealth of Virginia submitted a
formal revision to its SIP. The SIP revision consists of four new
regulations to 9 VAC 5, Chapter 40, amendments to one existing article
of 9 VAC 5, Chapter 40 and amendments to one article of 9 VAC Chapter
20.
The new regulations are:
(1) 9 VAC 5 Chapter 40, New Article 42--``Emission Standards for
Portable Fuel Container Spillage in the Northern Virginia Volatile
Organic Compound Emissions Control Area'' (``Rule 4-42''). (9 VAC 5-40-
5700 to 9 VAC 5-40-5770).
(2) 9 VAC 5, Chapter 40, New Article 47--``Emission Standards for
Solvent Metal Cleaning Operations in the Northern Virginia Volatile
Organic Compound Emissions Control Area'' (``Rule 4-47'')--(9 VAC 5-40-
6820 to 9 VAC 5-40-6970).
(3) 9 VAC 5, Chapter 40, New Article 48--``Emission Standards for
Mobile Equipment Repair and Refinishing Operations in the Northern
Virginia Volatile Organic Compound Emission Control Area'' (``Rule 4-
48'') (9 VAC 5-40-6970 to 9 VAC 5-40-7110) .
(4) 9 VAC 5, Chapter 40-New Article 49--``Emission Standards for
Architectural and Industrial Maintenance Coatings in the Northern
Virginia Volatile Organic Compound Emissions Control Area'' (``Rule 4-
49'') (9 VAC 5-40-7120 to 9 VAC 5-40-7230).
The February 23, 2004, submittal also included amendments to 9 VAC
5-20-21 ``Documents incorporated by reference'' to incorporate by
reference additional test methods and procedures needed for Rule 4-42
or Rule 4-49, and, also amendments to section 9 VAC 5-40-3260 of
Article 24 ``Emission Standards for Solvent Metal Cleaning Operations
Using Non-Halogentated Solvents'' (``Rule 4-24'').
This action concerns only Rule 4-42 and the addition of paragraph E
12 to 9 VAC 5-20-21 of the February 23, 2004 SIP revision. The other
portions of the February 23, 2004 SIP revision submittal (Rule 4-47,
Rule 4-48, Rule 4-49, the amendment to 9 VAC 5-40-3260, and the other
amendments and additions to 9 VAC 5-20-21) will be the subject of
separate rulemaking actions.
II. Summary of SIP Revision
The standards and requirements contained in Virginia's portable
fuel container rule are based on the Ozone Transport Commission (OTC)
model rule. The OTC developed control measures into model rules for a
number of source categories and estimated emission reduction benefits
from implementing those model rules. The OTC Portable Fuel Container
model rule was 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 provisions of Virginia's Rule 4-42 will 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 counties of
Arlington, Fairfax, Loudoun, Prince William, and Stafford counties; and
the cities of Alexandria, Fairfax, Falls Church, Manassas, and Manassas
Park. Affected persons must comply by January 1, 2005. The rule does
not apply to any portable fuel container or spout manufactured for
shipment, sale and use outside of the Northern Virginia area.
This regulation requires each portable fuel container or spout sold
in the Northern Virginia area 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. To demonstrate compliance, Virginia has
added test methods and procedures to the
[[Page 31895]]
documents incorporated by reference in its General Provisions, 9 VAC 5-
20.
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, 1997, 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,
1997 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. Final Action
EPA is approving a revision to the Commonwealth of Virginia SIP to
establish regulations for the control of VOC emissions from portable
fuel containers (Rule 4-42 in 9 VAC 5-40) and the associated test
methods and procedures incorporated by reference in the General
Provisions (9 VAC 5-20-21). These regulations will apply in the
Northern Virginia area. Implementation of this VOC control measure
strengthens the Virginia SIP, and results in emission reductions that
will help the DC area meet the additional requirements associated with
its reclassification to a severe nonattainment area for one-hour ozone.
EPA is publishing this rule without prior proposal because the Agency
views this as a noncontroversial amendment and anticipates no adverse
comment. However, in the ``Proposed Rules'' section of today's Federal
Register, EPA is publishing a separate document that will serve as the
proposal to approve the SIP revision if adverse comments are filed.
This rule will be effective on August 8, 2004 without further notice
unless EPA receives adverse comment by July 8, 2004. If EPA receives
adverse comment, EPA will publish a timely withdrawal in the Federal
Register informing the public that the rule will not take effect. EPA
will address all public comments in a subsequent final rule based on
the proposed rule. EPA will not institute a second comment period on
this action. Any parties interested in commenting must do so at this
time.
IV. 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
standard, and does not alter the
[[Page 31896]]
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 August 9, 2004. 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 to approve new VOC standards for portable
fuel containers manufactured, sold, or supplied for use in the Northern
Virginia 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, Ozone, Reporting
and recordkeeping requirements, Volatile organic compounds.
Dated: May 27, 2004.
James W. Newsom,
Acting 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. In Section 52.2420, the table in paragraph (c) is amended by adding
an entry to 9 VAC 5, Chapter 40 Part II to read as follows :
Sec. 52.2420 Identification of plan.
* * * * *
(c) EPA approved regulations.
EPA-Approved Regulations in the Virginia SIP
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State
State citation (9 VAC 5) Title/subject effective EPA approval date Explanation (former SIP
date section)
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* * * * * * *
Chapter 40.................... Existing Stationary Sources
-------------------------------
* * * * * * *
Part II Emission Standards
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* * * * * * *
Article 42.................... Emissions Standards for Portable Fuel Container Spillage in the Northern
Virginia Volatile Organic Compound Emissions Control Area (Rule 4-42)
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5-40-5700..................... Applicability.... 3/24/2004 June 8, 2004
[Federal
Register page
citation].
5-40-5710..................... Definitions...... 3/24/2004 June 8, 2004
[Federal
Register page
citation].
5-40-5720..................... Standard for 3/24/2004 June 8, 2004
volatile organic [Federal
compounds. Register page
citation].
5-40-5730..................... Administrative 3/24/2004 June 8, 2004
requirements. [Federal
Register page
citation].
5-40-5740..................... Compliance....... 3/24/2004 June 8, 2004
[Federal
Register page
citation].
5-40-5750..................... Compliance 3/24/2004 June 8, 2004
Schedules. [Federal
Register page
citation].
5-40-5760..................... Test methods and 3/24/2004 June 8, 2004
procedures. [Federal
Register page
citation].
5-40-5770..................... Notification, 3/24/2004 June 8, 2004
records and [Federal
reporting. Register page
citation].
-------------------------------
* * * * * * *
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0
3. Section 52.2423 is amended by adding paragraph (s) to read as
follows:
Sec. 52.2423 Approval status.
* * * * *
(s) EPA approves as part of the Virginia State Implementation Plan
the references to the documents listed in 9 VAC 5 Chapter 20, Section
5-20-21, paragraph E.12 of the Virginia Regulations for the Control and
Abatement of Air Pollution submitted by the Virginia Department of
Environmental Quality on February 23, 2004.
[FR Doc. 04-12769 Filed 6-7-04; 8:45 am]
BILLING CODE 6560-50-P