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

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

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.

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:

1. 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.

2. 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.

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

   Page 28446

   any, state audit privilege or immunity law.

4. 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.

5. Statutory and Executive Order Reviews

   1. 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.

   2. 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).

   3. 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) * * *

      Name of non-regulatory SIP

      Applicable

      State

      Additional revision

      geographic area submittal date EPA approval date

      explanation

      * * * * * * *

      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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