Approval and Promulgation of Air Quality Implementation Plans; Virginia; Revision Establishing the Western Virginia VOC and NOX Emissions Control Area, and Providing the Enabling Authority for NOX RACT Determinations in the Area

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: April 27, 2005 (Volume 70, Number 80)]
[Rules and Regulations]
[Page 21625-21628]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27ap05-7]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[R03-OAR-2005-VA-0002; FRL-7904-9]

Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Revision Establishing the Western Virginia VOC and NOX
Emissions Control Area, and Providing the Enabling Authority for NOX
RACT Determinations in the Area

AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.

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SUMMARY: Environmental Protection Agency (EPA) is taking direct final
action to approve a revision to the Commonwealth of Virginia State
Implementation Plan (SIP) establishing a new volatile organic compound
(VOC) and nitrogen oxide (NO_X) emissions control area. This
new area, entitled, the Western Virginia Emissions Control Area,
consists of the City of Winchester and Frederick County, Roanoke
County, Botetourt County, Roanoke City, and Salem City. EPA is also
approving a revision to provide the enabling authority to implement
NO_X Reasonably Available Control Technology (RACT) in the
affected areas. EPA is approving this revision in accordance with the
requirements of the Clean Air Act (CAA).

DATES: This rule is effective on June 27, 2005 without further notice,
unless EPA receives adverse written comment by May 27, 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-0002 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://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-0002, David Campbell, Chief, Air Quality
Planning Branch, 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-
0002 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://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://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

Prior to the final establishment of the 8-hour ozone nonattainment
areas, EPA developed a program to allow potential nonattainment areas
to voluntarily adopt local emission control programs to avoid air
quality violations and mandated nonattainment area controls. Areas with
air quality meeting the one-hour ozone standard were eligible to
participate. In order to participate, state and local governments and
EPA had to develop and sign an Early Action Compact (EAC) agreement
with EPA. This agreement outlined the implementation procedures for the
EAC program. As part of the EAC process, state and local communities
are required to adopt and implement measures to reduce ozone precursor
pollutants. In addition, the EAC program requires the preparation of an
attainment demonstration.
Several localities in the Winchester and Roanoke areas of Virginia
were eligible to participate in the EAC program. The areas that signed
an EAC are the City of Winchester and Frederick County, which comprise
the Northern Shenandoah Valley EAC, and the cities of Roanoke and
Salem, and the counties of Roanoke and Botetourt, which comprise the
Roanoke EAC.
In order to support this effort, the Commonwealth has elected to
expand its pre-existing list of emission control areas to include the
EAC participating localities and to expand its NO_X RACT
regulation to the new emission control area.

II. Summary of SIP Revision

On December 22, 2004, and supplemented on February 24, 2005, the
Commonwealth of Virginia submitted a formal revision to its SIP. The
SIP revision amends the Virginia Code at 9 VAC 5-20-206 to expand the
VOC and NO_X emission control areas to include the Western
Virginia Emissions Control Area. This area includes the counties of
Botetourt, Frederick, and Roanoke, and the cities of Roanoke, Salem,
and Winchester. The revision also authorizes the implementation of
NO_X RACT in the Western Virginia Emissions Control Area.
This SIP revision also includes several amendments to various

[[Page 21626]]

regulations in 9 VAC 5-40 which are intended to clarify certain
provisions. A more detailed summary of the changes may be found in the
technical support document (TSD) prepared for this rulemaking.

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 a revision to the Commonwealth of Virginia SIP
consisting of a regulation establishing the Western Virginia Emissions
Control Area, and providing the enabling authority for NO_X
RACT determinations in the affected areas. The regulations are
necessary in order to implement the control measures and achieve the
emission reductions in the plans for the Roanoke and Northern
Shenandoah Valley EAC areas.
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 June 27, 2005 without further
notice unless EPA receives adverse comment by May 27, 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. 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.

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 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 (59 FR 22951, 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

[[Page 21627]]

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 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 27, 2005. Filing a
petition for reconsideration by the Administrator of this final rule
approving the expansion of the VOC emission standards to the Western
Virginia Emissions Control Area, and providing the enabling authority
for NO_X RACT determinations in the affected areas, 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 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, Nitrogen dioxide,
Ozone, Reporting and recordkeeping requirements, Volatile organic
compounds.

Dated: April 19, 2005.
Donald S. Welsh,
Regional Administrator, Region III.

? 40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

? 1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart VV--Virginia

? 2. In Sec. 52.2420, the table in paragraph (c) is amended by revising
the entries for Chapter 20 and Chapter 40 to read as follows:

Sec. 52.2420 Identification of plan.

* * * * *
(c) EPA approved regulations and statutes.

EPA-Approved Regulations and Statutes in the Virginia SIP
----------------------------------------------------------------------------------------------------------------
State
State citation (9 VAC 5) Title/subject effective EPA approval date Explanation [former
date SIP citation]
----------------------------------------------------------------------------------------------------------------

* * * * * * *
----------------------------------
Chapter 20 General Provisions (Part II)
----------------------------------------------------------------------------------------------------------------

* * * * * * *
5-20-206......................... Volatile Organic 3/24/04 4/27/05 [Insert page
Compound and number where the
Nitrogen Oxides document begins].
Emissions Control
Areas.

* * * * * * *
----------------------------------
Chapter 40 Existing Stationary Sources
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------
Part II Emission Standards
----------------------------------------------------------------------------------------------------------------

* * * * * * *
----------------------------------
Article 4 General Process Operations (Rule 4-4)
----------------------------------------------------------------------------------------------------------------
5-40-240......................... Applicability and 3/24/04 4/27/05 [Insert page
Designation of number where the
Affected Facility. document begins].

[[Page 21628]]

* * * * * * *
5-40-310A-E...................... Standard for 3/24/04 4/27/05 [Insert page
Nitrogen Oxides. number where the
document begins].

* * * * * * *
----------------------------------
Article 37 Petroleum Liquid Storage and Transfer Operations (Rule 4-3)
----------------------------------------------------------------------------------------------------------------
5-40-5200........................ Applicability and 3/24/04 4/27/05 [Insert page
Designation of number where the
Affected Facility. document begins].

* * * * * * *
5-40-5220........................ Standard for 3/24/04 4/27/05 [Insert page
Volatile Organic number where the
Compounds. document begins].
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* * * * *
[FR Doc. 05-8437 Filed 4-26-05; 8:45 am]
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Approval and Promulgation of Air Quality Implementation Plans; Virginia; Revision Establishing the Western Virginia VOC and NOX Emissions Control Area, and Providing the Enabling Authority for NOX RACT Determinations in the Area

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