[Federal Register: June 16, 2009 (Volume 74, Number 114)]
[Rules and Regulations]
[Page 28444-28447]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16jn09-4]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2007-0287; FRL-8918-2]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Northern Virginia Reasonably Available Control Technology
Under the 8-Hour Ozone National Ambient Air Quality Standard
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 SIP revision consists
of a demonstration that the Virginia portion (Cities of Alexandria,
Fairfax, Falls Church, Manassas, and Manassas Park;
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Counties of Arlington, Fairfax, Loudon, and Prince William) of the
Washington, DC-MD-VA 8-Hour Ozone Nonattainment Area meets the
requirements of reasonably available control technology (RACT) for
oxides of nitrogen (NOX) and volatile organic compounds
(VOCs) set forth by the Clean Air Act (CAA). These requirements are
based on: Certification that previously adopted RACT controls in
Virginia's SIP that were approved by EPA under the 1-hour ozone
national ambient air quality standard (NAAQS) are based on the
currently available technically and economically feasible controls, and
that they continue to represent RACT for the 8-hour implementation
purposes; a negative declaration demonstrating that no facilities exist
in the Virginia portion of the Washington, DC-MD-VA area for certain
control technology guideline (CTG) categories; and a new RACT
determination for a specific source. This action is being taken under
the CAA.
DATES: Effective Date: This final rule is effective on July 16, 2009.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2007-0287. 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 http://
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: Gregory Becoat, (215) 814-2036, or by
e-mail at becoat.gregory@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On March 19, 2009 (74 FR 11702), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed
approval of the requirements of RACT under the 8-hour ozone NAAQS. EPA
received no comments on the proposal to approve Virginia's SIP
revision. The formal SIP revision was submitted by the Commonwealth of
Virginia on October 23, 2006.
II. Summary of SIP Revision
Virginia's SIP revision contains the requirements of RACT set forth
by the CAA under the 8-hour ozone NAAQS. Virginia's SIP revision is
consistent with the process in the Phase 2 Rule preamble, and satisfies
the requirements of RACT set forth by the CAA under the 8-hour ozone
NAAQS. Virginia's SIP revision satisfies the 8-hour RACT requirements
through (1) certification that previously adopted RACT controls in
Virginia's SIP that were approved by EPA under the 1-hour ozone NAAQS
are based on the currently available technically and economically
feasible controls, and continues to represent RACT for the 8-hour
implementation purposes; (2) a negative declaration demonstrating that
no facilities exist in the Virginia portion of the Washington, DC-MD-VA
area for the applicable CTG categories; and (3) a new RACT
determination for a single source. Other requirements of Virginia's 8-
hour RACT and the rationale for EPA's proposed action are explained in
the NPR and will not be restated here. No public comments were received
on the NPR.
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 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
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any, state audit privilege or immunity law.
IV. Final Action
EPA is approving the 8-hour RACT as a revision to the Commonwealth
of Virginia's SIP. Virginia's SIP revision contains the requirements of
RACT set forth by the CAA under the 8-hour ozone NAAQS. This SIP
revision was submitted on October 23, 2006.
V. Statutory and Executive Order Reviews
A. General Requirements
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 CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this 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 rule 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.
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 action 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. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action 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 CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by August 17, 2009. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action 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 Commonwealth of Virginia's RACT
provisions under the 8-hour ozone NAAQS, 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, Incorporation by
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
Dated: June 5, 2009.
William C. Early,
Acting Regional Administrator, Region III.
0
40 CFR Part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for 40 CFR 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 (e) is amended by adding
the entry for ``RACT under the 8-hour ozone NAAQS''--Virginia portion
of the Washington, DC-MD-VA area at the end of the table to read as
follows:
Sec. 52.2420 Identification of plan.
* * * * *
(e) * * *
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Name of non-regulatory SIP Applicable State Additional
revision geographic area submittal date EPA approval date explanation
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* * * * * * *
RACT under the 8-Hour ozone Virginia portion of 10/23/06 06/16/09, [Insert .....................
NAAQS. the Washington, DC- page number where
MD-VA area. the document
begins].
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[FR Doc. E9-14018 Filed 6-15-09; 8:45 am]
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