Approval and Promulgation of Air Quality Implementation Plans: Virginia; Amendments to Existing Regulation Provisions Concerning Reasonably Available Control Technology


Federal Register: February 28, 2008 (Volume 73, Number 40)

Rules and Regulations

Page 10670-10673

From the Federal Register Online via GPO Access []



EPA-R03-OAR-2007-1169; FRL-8532-6

Approval and Promulgation of Air Quality Implementation Plans;

Virginia; Amendments to Existing Regulation Provisions Concerning

Reasonably Available Control Technology

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is taking direct final action to approve revisions to the

Commonwealth of Virginia State Implementation Plan (SIP). The revisions pertain to administrative amendments to the Commonwealth regulation governing source-specific nitrogen oxides (NOX) reasonable available control technology (RACT). EPA is approving these revisions to the Commonwealth of Virginia SIP in accordance with the requirements of the Clean Air Act (CAA).

DATES: This rule is effective on April 28, 2008 without further notice, unless EPA receives adverse written comment by March 31, 2008. 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 Docket ID Number EPA-

R03-OAR-2007-1169 by one of the following methods:

  1. Follow the on-line instructions for submitting comments.

  2. E-mail:

  3. Mail: EPA-R03-OAR-2007-1169, Cristina Fernandez, Chief, Air

    Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection

    Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.

  4. 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- 2007-1169. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at, 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 or e-mail.

    The 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, 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 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 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 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


    1. Summary of the SIP Revision

      On September 28, 2006, the Commonwealth of Virginia submitted a revision to its State Implementation Plan. The revision consists of administrative amendments to Virginia's Regulation A99 pertaining to

      RACT for the control of NOXemissions from major stationary sources. The amendments consist of administrative wording changes, removal of surplus definitions, and the paragraph renumbering of a particular section.

    2. Description of SIP Revision and EPA Review

      These SIP revisions consist of the following changes: 1. Administrative wording changes to Regulations 9 VAC 5-40-240, 9

      VAC 5-40-250, and 9 VAC 5-40-311B. 2. Removal of definitions ``Combustion unit,'' ``Fuel burning equipment installation,'' and ``Total capacity'' in section 9 VAC 5-40- 311B.3. Section 9 VAC 5-40-311B.1 establishes that the definitions in section 9 VAC 5-40-311B.3 apply only to section 9 VAC 5-40-311.

      Although EPA had approved these revisions on April 28, 1999 (64 FR 22789), these three terms are used only in regulatory provisions which are not part of the approved Virginia SIP. 3. Renumbering of 9 VAC 5-40-311C.3.b., d., e., f., and g. to 9 VAC 5-40-311C.3.a., through e. respectively.

      EPA views the revisions to 9 VAC 5-40-240, 9 VAC 5-40-250, and 9

      VAC 5-

      Page 10671

      40-311B., as administrative changes. EPA also views the renumbering of 9 VAC 5-40-311C.3.b., d., e., f., and g. to 9 VAC 5-40-311C.3.a., through e. as an administrative re-codification. EPA considers these revisions non-substantive, as they do not affect the scope of the currently approved Virginia SIP, and consequently, cannot interfere with timely attainment or progress toward attainment of a national ambient air quality standard (NAAQS), nor interfere with any other provision of the Clean Air Act (CAA).

    3. 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 any, state audit privilege or immunity law.

    4. Final Action

      EPA is approving the Commonwealth of Virginia SIP revision to make the administrative changes to 9 VAC 5-40-240, 9 VAC 5-40-250, and 9 VAC 5-40-311, which was submitted on September 28, 2006. 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 April 28, 2008 without further notice unless EPA receives adverse comment by March 31, 2008. 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.

      Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

    5. Statutory and Executive Order Reviews

  5. 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

    Page 10672

    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 CAA. 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 approves a state rule implementing a Federal standard.

    In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. 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 CAA. 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.).

  6. 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).

  7. 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 April 28, 2008. 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 pertaining to amendments to the Commonwealth of Virginia regulations governing source-specific NOXRACT 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.

    Dated: February 12, 2008.

    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 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 (c) is amended by revising the entries for Chapter 40, Sections 5-40-240, 5-40-250, and 5-40-311 to read as follows:

    Sec. 52.2420 Identification of plan.

    * * * * *

    (c) * * *

    EPA-Approved Virginia Regulations and Statutes


    State citation (9 VAC 5)



    EPA approval date

    Explanation [former date

    SIP citation]

    * * * * * * *

    Chapter 40 Existing Stationary Sources

    * * * * * * *

    Part II Emission Standards

    * * * * * * *

    Article 4 General Process Operations (Rule 4-4)

    5-40-240................... Applicability and

    1/1/02 02/28/08 [Insert page designation of

    number where the affected facility.

    document begins]. 5-40-250................... Definitions...........

    1/1/02 02/28/08 [Insert page number where the document begins].

    * * * * * * * 5-40-311................... Reasonably available

    1/1/02 02/28/08 [Insert page Removal of definitions control technology

    number where the

    ``Combustion unit,'' guidelines for

    document begins].

    ``Fuel burning stationary sources of

    equipment nitrogen oxides.

    installation'' and

    ``Total capacity'' in 9 VAC 5-40-311B.3.

    Exception: 311D.

    * * * * * * *

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    * * * * *

    FR Doc. E8-3388 Filed 2-27-08; 8:45 am

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