Skip to Content

Rule

Approval and Promulgation of Air Quality Implementation Plans; Virginia; Documents Incorporated by Reference

Document Details

Information about this document as published in the Federal Register.

Published Document

This document has been published in the Federal Register. Use the PDF linked in the document sidebar for the official electronic format.

Start Preamble

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to approve revisions to the Virginia State Implementation Plan (SIP). The revisions consist of revised citations, editions, and corrected addresses to documents which are incorporated by reference in Virginia's SIP-approved regulations. EPA is approving these revisions in accordance with the requirements of the Clean Air Act (CAA).

DATES:

This rule is effective on May 2, 2006 without further notice, unless EPA receives adverse written comment by April 3, 2006. 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-2005-VA-0014 by one of the following methods:

A. http://www.regulations.gov. Follow the on-line instructions for submitting comments.

B. E-mail: frankford.harold@epa.gov.

C. Mail: EPA-R03-OAR-2005-VA-0014, Harold A. Frankford, Office of Air Programs, Mailcode 3AP20, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.

D. 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. Start Printed Page 10839

Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-2005-VA-0014. 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://www.regulations.gov, 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 http://www.regulations.gov or e-mail. The http://www.regulations.gov 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 http://www.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 http://www.regulations.gov 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 http://www.regulations.gov 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.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

Harold A. Frankford, (215) 814-2108, or by e-mail at frankford.harold@epa.gov.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

I. Background

On August 25, 2005 and October 25, 2005, the Commonwealth of Virginia submitted formal revisions to its State Implementation Plan (SIP). The SIP revisions consist of revised citations, editions, and corrected addresses to technical documents which are incorporated by reference in Virginia's SIP regulations.

II. Summary of SIP Revisions

A. Description of Submittals

On August 25, 2005, Virginia submitted revised citations, editions, and corrected addresses to technical documents which are incorporated by reference in Virginia's regulations. The document citations are listed in Virginia Regulation 9 VAC 5-20-21. The referenced publications include documents such as “Code for Motor Fuel Dispensing Facilities and Repair Garages,” “Standard for Tank Vehicles and Flammable and Combustible Liquids,” and “Flammable and Combustible Liquids Code” by the National Fire Protection Association (NFPA); “Atmospheric Emissions from Sulfuric Acid Manufacturing Processes” by the Environmental Protection Agency; and “Test for Pour Point of Petroleum Oils” by the American Society for Testing and Materials (ASTM). Virginia has also updated the citations, editions and addresses of documents prepared by EPA, ASTM, NFPA, the U.S. Government Printing Office (GPO), and American Petroleum Institute (API). In addition, Virginia has revised rules in 9 VAC 5, Chapter 40, Articles 5 (Synthesized Pharmaceutical Products Manufacturing Operations), 21 (Sulfuric Acid Production Units), and 37 (Petroleum Liquid Storage and Transfer Operations) which cross-reference the documents that are listed in Regulation 9 VAC 5-20-21. The submittal also contains an updated reference to the July 1, 2002 Code of Federal Regulations (CFR) which Virginia cites in its State regulations.

On October 25, 2005, Virginia submitted an additional revision to the provision in 9 VAC 5-20-21.B. This revision states that any reference to the CFR in Virginia's SIP-approved regulations means those CFR provisions which are in effect as of July 1, 2004.

B. EPA Evaluation

EPA has determined that these SIP revisions incorporate the most up-to-date version of technical documents that are referenced in Virginia's air pollution control regulations, thus ensuring the proper implementation of the air pollution control regulations which comprise the SIP. EPA's approval of the revisions to 9 VAC 5-20-21.B is for those provisions of the CFR which implement control programs for air pollutants related to the national ambient air quality standards (NAAQS) and regional haze.

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 § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged Start Printed Page 10840because 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 revisions to the Virginia SIP submitted by the Commonwealth of Virginia on August 25, 2005 and October 25, 2005. These revisions consist of revised citations, editions, and corrected addresses to documents that are incorporated by reference in Virginia's SIP-approved regulations. 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 May 2, 2006 without further notice unless EPA receives adverse comment by April 3, 2006. 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 (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 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 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 May 2, 2006. 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 Start Printed Page 10841shall not postpone the effectiveness of such rule or action. This action approving the revisions to Virginia rule 9 VAC 5-20-21 that update the technical documents and CFR provisions which are incorporated by reference may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Start List of Subjects

List of Subjects in 40 CFR Part 52

End List of Subjects Start Signature

Dated: February 22, 2006.

William Early,

Acting Regional Administrator, Region III.

End Signature Start Amendment Part

is amended as follows:

End Amendment Part Start Part

PART 52—[AMENDED]

End Part Start Amendment Part

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

End Amendment Part Start Authority

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

End Authority

Subpart VV—Virginia

Start Amendment Part

2. In Section 52.2420, the tables in paragraphs (c) and (e) are amended:

End Amendment Part Start Amendment Part

a. In paragraph (c) by revising the entries for State citations 5-40-460, 5-40-2930, 5-40-5210, and 5-40-5230 for Chapter 40.

End Amendment Part Start Amendment Part

b. In paragraph (e) by adding entries for Documents Incorporated by Reference after the existing entries.

End Amendment Part Start Amendment Part

The amendments read as follows:

End Amendment Part
Identification of plan.
* * * * *

(c) * * *

EPA-Approved Virginia Regulations and Statutes

State citation (9 VAC 5)Title/subjectState effective dateEPA approval dateExplanation [former SIP citation]
*         *         *         *         *         *         *
Chapter 40 Existing Stationary Sources [Part IV]
*         *         *         *         *         *         *
Part II Emission Standards
*         *         *         *         *         *         *
Article 5 Emission Standards for Synthesized Pharmaceutical Products Manufacturing Operations (Rule 4-5)
*         *         *         *         *         *         *
5-40-460Control Technology Guidelines2/1/023/3/06 [Insert page number where the document begins]
Article 21 Emission Standards for Sulfuric Acid Production Units (Rule 4-21)
*         *         *         *         *         *         *
5-40-2930Monitoring2/1/023/3/06 [Insert page number where the document begins]
Article 37 Emission Standards for Petroleum Liquid Storage and Transfer Operations (Rule 4-37)
*         *         *         *         *         *         *
5-40-5210Definitions2/1/023/3/06 [Insert page number where the document begins]
5-40-5230Control Technology Guidelines2/1/023/3/06 [Insert page number where the document begins]
*         *         *         *         *         *         *
* * * * *

(e) * * *Start Printed Page 10842

Name of non-regulatory SIP revisionApplicable geographic areaState submittal dateEPA approval dateAdditional explanation
*         *         *         *         *         *         *
Documents Incorporated by Reference (9 VAC 5-20-21, Sections D., E. (introductory sentence), E.2 (all paragraphs), E.3.b, E.4.a.(1) and (2), E.4.b., E.5. (all paragraphs), and E.7. (all paragraphs))Statewide8/25/053/3/06 [Insert page number where the document begins]State effective date is 2/1/00.
Documents Incorporated by Reference (9 VAC 5-20-21, Section B)Statewide10/25/053/3/06 [Insert page number where the document begins]State effective is 3/9/05; approval is for those provisions of the CFR which implement control programs for air pollutants related to the national ambient air quality standards (NAAQS) and regional haze.
*         *         *         *         *         *         *
End Supplemental Information

[FR Doc. 06-1943 Filed 3-2-06; 8:45 am]

BILLING CODE 6560-50-P