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Approval and Promulgation of Air Quality Implementation Plans; Virginia; Amendments to the Open Burning Regulation

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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 SIP revision pertains to the amendments of Virginia's open burning regulation. EPA is approving this SIP revision in accordance with the Clean Air Act (CAA).


Effective Date: This final rule is effective on April 20, 2009.


EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2007-0200. 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 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 June 7, 2007 (72 FR 31493), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed approval of the amendments to Virginia's open burning regulation (9 VAC 5, Chapter 40, Part II, Article 40, Sections 5-40-5600 through 5-40-5630). The formal SIP revision was submitted by the Virginia Department of Environmental Quality (VADEQ) on February 5, 2007. The provisions of Virginia's open burning regulation and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. On July 9, 2007, EPA received comments from VADEQ on the June 7, 2007 NPR. The comments state that they are not to be considered adverse to EPA's proposed action; rather, VADEQ requests that EPA revise the preamble to the rule where the preamble is arguably inconsistent with Virginia's submittal. A summary of those comments and EPA's responses are provided in Section II of this document.

II. Summary of Public Comments and EPA Responses

Comment: The commenter requests to correct the following under the “Summary of SIP Revision,” the list of volatile organic compound (VOC) emission control areas:

1. Western Virginia Emissions Control Area: Add “Roanoke City;” change “Salem County” to “Salem City;” and change “Winchester County” to “Winchester City.”

2. Hampton Roads Emissions Control Area: Add “Gloucester County” and “Isle of Wight County” and change “Suffolk County” to Suffolk City.”

3. Richmond Emissions Control Area: Add “Prince George County” and “Petersburg City.”

Response: EPA acknowledges that the June 7, 2007 proposal inadvertently omitted the above-referenced geographic areas, which were included in Virginia's submittal.

Comment: The commenter requests that the seasonal restrictions in 9 VAC 5-40-5630(A)(8) and 9 VAC 5-40-5630(A)(10) as applying in the County of Gloucester and the County of Isle of Wight not become part of Virginia SIP until 2009.

Response: The effective date of this approval is 2009; therefore this comment is moot.

Comment: The commenter requests to remove the terms “landfill,” “local Start Printed Page 11662landfill” and “salvage operation” from the list of definitions affected by this SIP approval, since no changes were made to these definitions. The commenter requests to add the term “junkyard” in the list of definitions, since a change was made to this definition.

Response: EPA agrees that Virginia's submittal did not change the definitions of the terms “landfill,” “local landfill” and “salvage operation,” which were inadvertently included in the June 7, 2007 notice as having been changed. EPA also agrees that Virginia added the term “junkyard” although this term was inadvertently omitted from the list of changes in the SIP Revision Summary of the notice.

Comment: The commenter requests to replace the following statement contained in the preamble: “This SIP revision provides for the control of open burning and use of special incineration devices for destruction of rubber tires, asphaltic materials, crankcase oil, impregnated wood or other rubber or petroleum based materials except when conducting bona fide fire fighting instruction at fire fighting training schools having permanent facilities. This SIP revision also provides for the control of open burning and use of special incineration device for the destruction of hazardous waste or containers for such materials. In addition, this SIP revision provides for the control of open burning and use of special incineration device for the purpose of salvage operation or for the destruction of commercial/industrial waste.”

The commenter suggests replacing that statement with: “The destruction of rubber tires, asphaltic materials, crankcase oil, impregnated wood or other rubber or petroleum based materials is prohibited by open burning or the use of special incineration devices except when conducting bona fide fire fighting instruction at firefighting training schools having permanent facilities. Open burning or the use of special incinerator devices is also prohibited for the destruction of hazardous waste or containers for such materials as well as for salvage operations or for the destruction of commercial/industrial waste.”

Response: EPA agrees that VADEQ's suggested replacement statement is an accurate synopsis of the rule, and should replace EPA's statement from the rule proposal.

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 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 any, state audit privilege or immunity law.

IV. Final Action

EPA is approving the amendments to the open burning regulation (9 VAC 5, Chapter 40, Part II, Article 40, Sections 5-40-5600 through 5-40-5630) as a revision to the Virginia SIP submitted on February 5, 2007.

V. Statutory and Executive Order Reviews

A. 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 Start Printed Page 11663Executive 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.

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 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).

C. 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 May 18, 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, approving the amendments of Virginia's open burning regulation, 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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January 22, 2009.

William T. Wisniewski,

Acting Regional Administrator, Region III.

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is amended as follows:

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1. The authority citation for

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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 table in paragraph (c) is amended by revising the entries for 9 VAC 5, Chapter 40, Part II, Article 40, Sections 5-40-5600 through 5-40-5630 to read as follows:

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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]
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Chapter 40 Existing Stationary Sources
*         *         *         *         *         *         *
Part II Emission Standards
*         *         *         *         *         *         *
Article 40Open Burning (Rule 4-40)
5-40-5600Applicability10/18/06March 19, 2009 [Insert page number where the document begins]Provisions of Article 40 expanded to new localities in the emissions control areas.
5-40-5610Definitions10/18/06March 19, 2009 [Insert page number where the document begins]Terms added: “Air curtain incinerator,” “Clean lumber,” “Wood waste,” and “Yard waste.”
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Terms revised: “Clean burning waste,” “Clean wood,” “Commercial waste,” “Construction waste,” “Debris waste,” “Demolition waste,” “Garbage,” “Hazardous waste,” “Household waste,” “Industrial waste,” “Junkyard,” “Open burning,” “Open pit incinerator,” “Refuse,” “Sanitary landfill,” and “Special incineration device.”
5-40-5620Open burning prohibitions10/18/06March 19, 2009 [Insert page number where the document begins]
5-40-5630Permissible open burning10/18/06March 19, 2009 [Insert page number where the document begins]
*         *         *         *         *         *         *
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[FR Doc. E9-5822 Filed 3-18-09; 8:45 am]