[Federal Register: April 29, 2005 (Volume 70, Number 82)]
[Rules and Regulations]
[Page 22263-22266]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29ap05-10]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[R03-OAR-2005-VA-0003; FRL-7905-9]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Minor Revisions to the Fugitive Dust and Waiver Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is taking direct final action to approve a revision to the
Virginia State Implementation Plan (SIP). The revision removes oil
application as an acceptable alternative fugitive dust emissions
reduction method, due to an existing prohibition of oil application, on
land, found in the Virginia statute. In addition, the revision changes
a specific reference from ``Executive Director'' to ``Director.'' EPA
is approving these minor revisions to Virginia's regulations in
accordance with the requirements of the Clean Air Act.
DATES: This rule is effective on June 28, 2005 without further notice,
unless EPA receives adverse written comment by May 31, 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-0003 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: morris.makeba@epa.gov.
D. Mail: R03-OAR-2005-VA-0003, Makeba Morris, 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-
0003. 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: Linda Miller, (215) 814-2068, or by e-
mail at miller.linda@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On February 2, 2004, the Virginia Department of Environmental
Quality submitted a formal revision to its State Implementation Plan
(SIP). The SIP revision consists of minor modifications to Virginia's
fugitive dust and waiver regulations. These minor revisions remove
language that conflicts with the Virginia statute and clarifies who may
grant a waiver.
II. Summary of SIP Revision
The SIP revision, submitted on February 2, 2004, includes
regulatory modifications made to alleviate a conflict between statutory
provisions and regulatory requirements. The Virginia statute (Code of
Virginia, Section 62.1-44.34:18) prohibits the discharge of oil upon
land. The previously SIP approved Virginia regulations concerning
fugitive dust/emissions conflicted with the statutory prohibition. The
revisions to 9 VAC 5-40-90 and 9 VAC 5-50-90 remove the reference to
application of oil as a means to reduce fugitive dust emissions. The
change does not affect the stringency of the SIP as there are several
other alternatives to reduce fugitive emissions.
In addition, there are several other minor editorial corrections
made to 9 VAC 5-40-120 and 9 VAC 5-50-120. The reference to ``Executive
Director'' is changed to ``Director, `` and the word ``methods'' is
removed from several provisions in the regulation. These minor
editorial changes do not alter the interpretation of the SIP approved
regulations.
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
[[Page 22264]]
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.
III. Final Action
EPA is approving a revision to the SIP to remove the reference to
application of oil as a means to reduce fugitive dust emissions in 9VAC
5-40-90-2 and 9 VAC 5-50-90-2. EPA is publishing this rule without
prior proposal because the Agency views this as a noncontroversial
amendment to approve a minor change to regulations 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 June 28, 2005 without further
notice unless EPA receives adverse comment by May 31, 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.
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 (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
standard, 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
[[Page 22265]]
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 June 28, 2005. Filing a
petition for reconsideration by the Administrator of this final rule to
approve minor changes to the visible emissions and fugitive dust
regulations 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 minor
revisions to the Virginia fugitive dust and waiver provisions, 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, Particulate
matter.
Dated: April 20, 2005.
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. In Sec. 52.2420, the table in paragraph (c) is amended by revising
the entries under Chapter 40, Part II, sections 5-40-90 and 5-40-120;
and Chapter 50, Part II, sections 5-50-90 and 5-50-120 to read as
follows:
Sec. 52.2420 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Regulations and Statutes in the Virginia SIP
--------------------------------------------------------------------------------------------------------------------------------------------------------
State Explanation
State citation (9 VAC 5) Title/subject effective EPA approval date [former SIP
date citation]
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------
Chapter 40 Existing Stationary Sources [Part IV]
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Part II Emission Standards
Article 1 Visible Emissions and Fugitive Dust/Emissions (Rule 4-1)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
5-40-90.......................... Standard for fugitive dust/emissions......... 2/1/03 4/29/05 Insert page number where the ..................
document begins]
* * * * * * *
----------------------------------
5-40-120......................... Waiver....................................... 2/1/03 4/29/05 [Insert page number where the
document begins]
* * * * * * *
----------------------------------
Chapter 50 New and Modified Stationary Sources [Part V]
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Part II Emission Standards
Article 1 Standards of Performance for Visible Emissions and Fugitive Dust/Emissions (Rule 5-1)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
5-50-90.......................... Standard for fugitive dust/emissions......... 2/1/03 4/29/05 [Insert page number where the ..................
document begins]
* * * * * * *
----------------------------------
5-50-120......................... Waiver....................................... 2/1/03 4/29/05 [Insert page number where the ..................
document begins]
[[Page 22266]]
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
[FR Doc. 05-8606 Filed 4-28-05; 8:45 am]
BILLING CODE 6560-50-P