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Approval and Promulgation of Air Quality Implementation Plans; Virginia; Clarifying Revisions to 9 VAC 5 Chapter 40 Fuel Burning Equipment

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Information about this document as published in the Federal Register.

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Environmental Protection Agency (EPA).


Direct final rule.


EPA is approving revisions to the Virginia State Implementation Plan (SIP) regarding existing stationary sources. The revisions concern provisions covering fuel burning equipment. The intent of the revisions is to clarify the applicability of the regulation and to indicate clearly that permits may be needed for the operation of a facility. New definitions to reflect the clarification along with some additional minor changes are included in the revisions. These revisions, submitted by the Commonwealth of Virginia's Department of Environmental Quality (VADEQ), are being approved in accordance with the Clean Air Act.


This rule is effective on July 30, 2001 without further notice, unless EPA receives adverse written comment by July 2, 2001. 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.


Written comments should be mailed to David L. Arnold, Chief, Air Quality Planning and Information Services Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Start Printed Page 29496Philadelphia, Pennsylvania 19103. Copies of the documents relevant to this action are available 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; Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia, 23219.

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Ruth E. Knapp, (215) 814-2191, or by e-mail at

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Throughout this document wherever “we,” “us” or “our” are used we mean EPA.

Table of Contents

I. What is the EPA Approving?

II. What are the Provisions of the Revised Regulation?

III. What Are the Environmental Effects of this Action?

IV. Special Provisions Regarding Virginia.

V. EPA Rulemaking Action.

VI. Administrative Requirements.

I. What Is EPA Approving?

We are approving, as a SIP revision, changes made to the Commonwealth of Virginia's regulations for fuel burning equipment. The SIP revisions consist of new definitions and additional wording to clarify that the fuel burning regulations under the Commonwealth's regulations found at 9 VAC 5-40-880, 9 VAC 8-40-890, 9 VAC 5-40-900, 9 VAC 5-40-940, and 9 VAC 5-40-1040 apply to stationary combustion turbines but not to stationary internal combustion engines. Definitions for each of these types of equipment have been added to 9 VAC 5-40-890, Definitions. Some minor additional changes in wording are also included in the revisions along with additional clarification of when permits may be needed at a facility.

II. What Are the Provisions of the Revised Regulation?

The revisions clarify which sources are covered under the Fuel Burning Equipment Rule. The revisions indicate that the provisions of 9 VAC 5 Chapter 40 related to Emission Standards for Fuel Burning Equipment do not apply to stationary internal combustion engines. The definition of fuel burning equipment has been revised to indicate clearly that stationary combustion turbines are considered to be fuel burning equipment. Two new definitions have been added to the rule at 9 VAC 5-40-890. One defines a “stationary combustion turbine” as any air breathing internal combustion engine consisting of an air compressor, combustion chamber, and a turbine wheel. The definition of a “stationary internal combustion engine” is an engine in which fuel is burned within a machine in which energy is converted directly into mechanical motion or work. The energy is used directly for the production of power, locomotion or work. Internal combustion engines include, but are not limited to, diesel engines, gasoline engines, and diesel pumps. In addition to these clarifications of applicability, 9 VAC 5-40-1040 has been revised to indicate that permits may be needed for the operation of a facility.

III. What Are the Environmental Effects of This Action?

The changes regarding the definition of fuel burning equipment only clarify the current interpretation of the regulations. They do not make the regulations any more or less stringent. The revisions, therefore, have no direct environmental effects in and of themselves. They do provide the public and industry with a better understanding of the type of equipment regulated under this rule.

IV. Special Provisions Regarding 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, 1997, 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 § 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, 1997 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. Start Printed Page 29497

V. EPA Rulemaking Action

We are approving revisions to the Virginia SIP subumitted by the Virginia Department of Environmental Quality on March 27, 2000. The revisions to 9 VAC 5 Chapter 40 pertaining to Fuel Burning Equipment clarify the applicability to stationary combustion turbines and also clarifies when permits may be needed. We are publishing this action without prior proposal because we view this as a noncontroversial revision and anticipate no adverse comments. However, in the “Proposed Rules” section of today's Federal Register, we are 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 July 30, 2001 without further notice unless we receive adverse comment by July 2, 2001. Should we receive such comments, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting on this action must do so at this time.

VI. Administrative Requirements

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. 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). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will 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), because it 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 (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. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings' issued under the executive order. 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 July 30, 2001. 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 regarding revisions to the Virginia Fuel Burning Equipment Rule may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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List of Subjects in 40 CFR Part 52

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Dated: May 17, 2001.

Thomas C. Voltaggio,

Acting Regional Administrator, Region III.

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is amended as follows:

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

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

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Subpart VV—Virginia

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2. In § 52.2420, the entries for 9 VAC 5 Chapter 40, subsections 5-40-880, 5-40-890, 5-40-900, 5-40-940 and 5-40-1040 in the “EPA-Approved Regulations in the Virginia SIP” table in paragraph (c) are revised to read as follows:

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Identification of plan.
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(c) EPA approved regulations. Start Printed Page 29498

EPA-Approved Regulations in the Virginia SIP

State citation (9 VAC 5)Title/subjectState effective dateEPA approval dateExplanation (former SIP citation)
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Chapter 40—Existing Stationary Sources
5-40-880Applicability and designation of affected facilityApril 1, 19995/31/01 66 FR 29498
5-40-890DefinitionsApril 1, 19995/31/01 66 FR 29498
5-40-900Standard for particular matterApril 1, 19995/31/01 66 FR 29498
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5-40-940Standard for visible emissionsApril 1, 19995/31/01 66 FR 29498
*         *         *         *         *         *         
5-40-1040PermitsApril 1, 19995/31/01 66 FR 29498
*         *         *         *         *         *         *

(d) * * *

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[FR Doc. 01-13500 Filed 5-30-01; 8:45 am]