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Approval and Promulgation of Air Quality Implementation Plans; Virginia; Emission Standards for Consumer Products in the Northern Virginia Volatile Organic Compound Emissions Control Area

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Information about this document as published in the Federal Register.

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Environmental Protection Agency (EPA).


Final rule.


EPA is approving a State Implementation Plan (SIP) revision submitted by the Commonwealth of Virginia. This revision pertains to the emission standards for consumer products sold and used in the Northern Virginia volatile organic compound (VOC) emissions control area. EPA is approving this SIP revision in accordance with the Clean Air Act (CAA or Act).


This final rule is effective on March 1, 2007.


EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2005-VA-0017. All documents in the docket are listed in the 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 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.

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Rose Quinto, (215) 814-2182, or by e-mail at

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I. Background

On January 31, 2006 (71 FR 5035), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed approval of a new rule, 9 VAC 5 Chapter 40, Consumer Products (9 VAC 5-40-7240 through 9 VAC 5-40-7360); and the amendments to 9 VAC 5-20-21 that incorporate by reference test methods and procedures needed for 9 VAC 5 Chapter 40. The formal SIP revision was submitted by the Virginia Department of Environmental Quality (VADEQ) on October 25, 2005.

II. Summary of SIP Revision

The Virginia consumer products rule, 9 VAC 5 Chapter 40, applies only to sources in the Northern Virginia VOC emissions control area designated in 9 VAC 5-20-206. The rule applies to a person who sells, supplies, offers for sale, or manufactures consumer products on or after July 1, 2005. Also included in the rule are definitions, the VOC content limits, standards and exemptions, innovative products, requirements for waiver requests, administrative requirements for labeling and reporting, test methods for demonstrating compliance, compliance schedules, an alternative control plan, monitoring, and reporting and recordkeeping requirements.

Amendments to 9 VAC 5-20-21 incorporate by reference additional test methods and procedures needed for 9 VAC 5 Chapter 40.

Other specific requirements of 9 VAC 5 Chapter 40, amendments to 9 VAC 5-20-21, and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. On February 2, 2006, EPA received a single comment on its January 31, 2006 NPR. A summary of the comment submitted and EPA's response is provided in Section III of this document.

III. Summary of Public Comments and EPA Responses

Comment: A commenter pointed out that one of its test methods referenced in the State regulation had been revised and renumbered.

Response: The commenter merely points out that one test method that the rule incorporates has been revised and renumbered. The commenter does not request that EPA disapprove the rule, nor allege that the current regulation incorporating the earlier version of the test method is in any way adequate. Therefore, EPA concludes that the information provided by the commenter does not change EPA's proposal to approve the SIP revision.

IV. 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 Start Printed Page 4208Attorney 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, 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.

V. Final Action

EPA is approving the Virginia SIP revision submitted on October 25, 2005 for the new regulation, 9 VAC 5 Chapter 40—Consumer Products, and the amendments to 9 VAC 5-20-21 that incorporates by reference test methods and procedures needed for 9 VAC 5 Chapter 40.

VI. 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 April 2, 2007. 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 the Virginia consumer products 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: January 18, 2007.

Donald S. Welsh,

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. Section 52.2420 is amended as follows:

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a. The table in paragraph (c) is amended by adding an entry for Chapter 40, Part II, Article 50.

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b. The table in paragraph (e) is amended by adding an entry for “Documents Incorporated by Reference” at the end of the table.

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Identification of plan.
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(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 II Emission Standards
*         *         *         *         *         *         *
Article 50 Consumer Products (Rule 4-50)
5-40-7240Applicability3/9/05January 30, 2007 [Insert page number where the document begins]
5-40-7250Exemptions3/9/05January 30, 2007 [Insert page number where the document begins]
5-40-7260Definitions3/9/05January 30, 2007 [Insert page number where the document begins]
5-40-7270Standard for volatile organic compounds3/9/05January 30, 2007 [Insert page number where the document begins]
5-40-7280Alternative control plan (ACP) for consumer products3/9/05January 30, 2007 [Insert page number where the document begins]
5-40-7290Innovative Products3/9/05January 30, 2007 [Insert page number where the document begins]
5-40-7300Administrative requirements3/9/05January 30, 2007 [Insert page number where the document begins]
5-40-7320Compliance3/9/05January 30, 2007 [Insert page number where the document begins]
5-40-7330Compliance schedules3/9/05January 30, 2007 [Insert page number where the document begins]
5-40-7340Test methods and procedures3/9/05January 30, 2007 [Insert page number where the document begins]
5-40-7350Monitoring3/9/05January 30, 2007 [Insert page number where the document begins]
5-40-7360Notification, records and reporting3/9/05January 30, 2007 [Insert page number where the document begins]
*         *         *         *         *         *         *
* * * * *

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Name of non-regulatory SIP revisionApplicable geographic areaState submittal dateEPA approval dateAdditional Explanation
*         *         *         *         *         *         *
Documents Incorporated by ReferenceNorthern Virginia VOC Emissions Control Area designated in 9 VAC 5-20-20610/25/05January 30, 2007 [Insert page number where the document begins]State effective date is 3/9/05 9 VAC 5-20-21, Sections E.1.a.(16)., E.4.a.(18) through a.(20), E.6.a, E.11.a.(3), E.12.a.(5) through a.(8), E.14.a. and E.14.b.
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[FR Doc. E7-1337 Filed 1-29-07; 8:45 am]