[Federal Register: June 20, 2005 (Volume 70, Number 117)]
[Rules and Regulations]
[Page 35379-35382]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20jn05-5]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[R03-OAR-2005-VA-0008; FRL-7925-6]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; VOC Emission Standards in the Hampton Roads VOC Emissions
Control Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action to approve a revision to the
Commonwealth of Virginia State Implementation Plan (SIP). This revision
consists of the removal of the exemption from volatile organic compound
(VOC) emission standards for sources located in the Hampton Roads VOC
Emissions Control Area localities of James City County, York County,
Poquoson City, and Williamsburg City. This action is necessary in order
for Virginia to meet its obligation to implement contingency measures
as a result of the area's violation of the 1-hour ozone standard. This
action is being taken in accordance with the requirements of the Clean
Air Act.
DATES: This rule is effective on August 19, 2005 without further
notice, unless EPA receives adverse written comment by July 20, 2005.
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 Regional Material in
EDocket (RME) ID Number R03-OAR-2005-VA-0008, by one of the following
methods:
A. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the on-line instructions for submitting comments.
B. Agency Web site: http://www.docket.epa.gov/rmepub/ RME, EPA's
electronic public docket and comment system, is EPA's preferred method
for receiving comments. Follow the on-line instructions for submitting
comments.
C. E-mail: campbell.dave@epa.gov.
D. Mail: R03-OAR-2005-VA-0008, David Campbell, Chief, Air Quality
Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency,
Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
E. 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 RME ID No. R03-OAR-2005-VA-
0008. EPA's policy is that all comments received will be included in
the public docket without change, and may be made available online at
http://www.docket.epa.gov/rmepub/, 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 RME, regulations.gov
or e-mail. The EPA RME and the Federal regulations.gov websites are 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 RME or 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
RME index at http://www.docket.epa.gov/rmepub/. 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 RME
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 wentworth.ellen@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On February 22, 2005, the Commonwealth of Virginia submitted a
formal revision to its SIP. This SIP revision consists of the removal
of the exemption from VOC emission standards for sources located in the
Hampton Roads VOC Emissions Control Area localities of James City
County, York County, Poquoson City, and Williamsburg City. Sources of
VOC emissions in these localities will now be required to meet the
emission standards set forth in Chapter 40 of the Regulations for
Control and Abatement of Air Pollution. This action is necessary in
order for Virginia to implement contingency measures specified in the
maintenance plan established for Hampton Roads. The Hampton Roads Area
was designated attainment for the 1-hour ozone standard on June 26,
1997 (62 FR 34408), but subsequently violated the standard between 1999
and 2001.
II. Summary of SIP Revision
The Hampton Roads Area, consisting of the localities of James City
County, Poquoson City, York County, Portsmouth City, Chesapeake City,
Suffolk City, Hampton City, Virginia Beach City, Newport News City,
Williamsburg City, and Norfolk City, was classified as a marginal
nonattainment area in 1991 (56 FR 56694). The Area was able to achieve
the 1-hour ozone standard and was designated attainment for the 1-hour
standard on June 26, 1997 (62 FR 34408). The maintenance plan submitted
and approved at the time of the redesignation included specific
strategies aimed at maintaining air quality and contingency measures in
the event the Area measured ozone concentrations above allowable
levels. One of the potential measures available was to remove the
exemption to meet existing VOC standards provided to sources located in
the Hampton Roads Area localities of James City County, York County,
Poquoson City, and Williamsburg City. Since the initial promulgation of
the VOC emissions control areas in 1979, these four localities had been
exempt from meeting the VOC emission standards in 9 VAC-5-40-10, et
seq. At the time, they were considered to be too rural to make a
significant contribution to air pollution in the area. However, due to
growth in the area, these localities can no longer be considered rural.
[[Page 35380]]
As stated previously, between 1999 and 2001, Hampton Roads recorded
four exceedances of the 1-hour ozone standard. As a result, Virginia is
required to implement the contingency measures specified in the
maintenance plan established for Hampton Roads. One of these measures
is the removal of the exemption provided to four localities in the area
from existing requirements for limiting VOC emissions. Removal of the
exemption will allow Virginia to implement contingency measures
required by the maintenance plan with the expectation that the
additional VOC reductions provided will ensure that the Area continues
to achieve the 1-hour ozone standard.
Chapter 40 of the Regulations for the Control and Abatement of Air
Pollution contains a number of regulations with VOC emission standards.
The geographic applicability of these rules is defined by establishing
VOC emissions control areas in a list located in 9 VAC 5-20-206 of
Chapter 20. This list currently exempts existing stationary sources
located in James City County, York County, Poquoson City, and
Williamsburg City from the applicable VOC standards as set forth in
several articles in Chapter 40. This SIP revision amends 9 VAC 5-20-
206.1.c. by removing the exemption from the VOC emission standards in
Chapter 40 for the four aforementioned localities. These four
localities will now be subject to the VOC standards for existing
sources as is the case in the other jurisdictions within the Hampton
Roads VOC Emissions Control Area. Existing sources of VOC emissions in
these localities will now be required to meet the emissions standards
set forth in Chapter 40 of the regulations for the control of air
pollution.
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. Final Action
EPA is approving the SIP revision submitted by the Commonwealth of
Virginia on February 22, 2005, amending 9 VAC 5-20-206.1.c. by removing
the exemption provided to the counties of James City and York, and the
cities of Poquoson and Williamsburg, located in the Hampton Roads VOC
Emissions Control Area, from existing VOC emission standards. Removal
of this exemption will allow Virginia to implement a contingency
measure required by its maintenance plan to address a violation of the
1-hour ozone standard.
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 19, 2005 without further
notice unless EPA receives adverse comment by July 20, 2005. 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.
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
[[Page 35381]]
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
(Public Law 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 August 19, 2005. 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, removing the VOC emission standards
exemption for four localities located in the Hampton Roads 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, Ozone, Reporting
and recordkeeping requirements, Volatile organic compounds.
Dated: June 13, 2005.
Thomas Voltaggio,
Acting, Regional Administrator, Region III.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
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1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart VV--Virginia
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2. In Section 52.2420, the table in paragraph (c) is amended by adding
an entry for Chapter 20, section 5-20-206 after the existing entry for
5-20-206 to read as follows:
Sec. 52.2420 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Virginia Regulations and Statutes
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State EPA
State citation (9 VAC 5) Title/subject effective approval Explanation [former SIP
date date citation]
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CHAPTER 20 General Provisions--(Part II)
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* * * * * * *
5-20-206......................... Volatile Organic Compound 3/24/04 6/20/05 Revised 5-20-206.1.c.
and Nitrogen Oxides [Insert applicable to the
Emissions Control Areas. page number Hampton Roads VOC
where the Emissions Control Area.
document
begins]
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[FR Doc. 05-12078 Filed 6-17-05; 8:45 am]
BILLING CODE 6560-50-P