Approval and Promulgation of Air Quality Implementation Plans; Virginia; VOC Emissions Standards for AIM Coatings, 24970-24979 [05-9313]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 70, Number 91 (Thursday, May 12, 2005)]
[Rules and Regulations]
[Pages 24970-24979]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-9313]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[VA151-5085; FRL-7910-1]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; VOC Emissions Standards for AIM Coatings

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the Commonwealth of Virginia. This revision pertains to 
the control of volatile organic compounds (VOC) emissions from 
architectural and industrial maintenance (AIM) coatings. EPA is 
approving this SIP revision in accordance with the Clean Air Act (CAA 
or Act).

DATES: Effective Date: This final rule is effective on June 13, 2005.

ADDRESSES: 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; and Virginia 
Department of Environmental Quality, 629 East Main Street, Richmond, 
Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182, or by e-
mail at quinto.rose@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    On June 7, 2004 (69 FR 31780), EPA published a notice of proposed 
rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed 
approval of a Virginia regulation pertaining to the control of VOC from 
AIM coatings. The formal SIP revision was submitted by the Virginia 
Department of Environmental Quality (VADEQ) on February 23, 2004. The 
specific requirements of Virginia's SIP revision for AIM coatings and 
the rationale for EPA's proposed action are explained in the NPR and 
will not be restated here. EPA received adverse comments on the June 7, 
2004 NPR. A summary of the comments submitted and EPA's responses are 
provided in Section II of this document.
    EPA is aware that concerns have been raised about the achievability 
of VOC content limits of some of the product categories under the 
Virginia AIM coatings rule. Although we are approving this rule today, 
the Agency is concerned that if the rule's limits make it impossible 
for manufacturers to produce coatings that are desirable to consumers, 
there is a possibility that users may misuse the products by adding 
additional solvent, thereby circumventing the rule's intended VOC 
emission reductions. We intend to work with Virginia and manufacturers 
to explore ways to ensure that the rule achieves the intended VOC 
emission reductions, and we intend to address this issue in evaluating 
the amount of VOC emission reduction credit attributable to the rule.

II. Public Comments and EPA Responses

    The National Paint and Coatings Association (NPCA) is one of the 
adverse commenters on EPA's June 7, 2004 proposed approval of 
Virginia's AIM coatings rule. The NPCA's comments include, by 
reference, the comments it previously submitted to Virginia on the 
proposed version of the AIM coatings rule during the Commonwealth's 
adoption process as transmitted by VADEQ in its February 23, 2004 SIP 
revision submittal to EPA. The NPCA also includes, by reference, the 
comments submitted by the Sherwin Williams Company (SWC) to EPA on the 
June 7, 2004 proposed approval of Virginia's AIM coatings rule. The SWC 
is the other adverse commenter on EPA's June 7, 2004 proposed approval 
of Virginia's AIM coatings rule. The SWC also includes, by reference, 
the comments it submitted to Virginia on the proposed version of the 
AIM coatings rule during the Commonwealth's adoption process, and the 
comments it submitted to the Ozone Transport Commission in a letter 
dated January 11, 2001.
    The following summarizes the comments submitted by the NPCA and the 
SWC to EPA on the June 7, 2004 proposed approval of Virginia's AIM 
coatings rule and EPA's response to those comments.
    A. Comment: Using Flawed Data Violates the Data Quality Objectives 
Act and Administrative Procedures Act--The commenters assert that the 
Virginia AIM coatings rule is based on flawed data and that the use of 
this data violates the Data Quality Objectives Act (``DQOA'') (Section 
515(a) of the Treasury and General Government Appropriations Act for 
Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)). The data at issue is 
contained in what the commenters characterize as a ``study prepared by 
E.H. Pechan & Associates'' (Pechan Study) in 2001. The alleged flaws 
relate to projected emissions reductions calculated in the Pechan 
Study.
    The commenters assert that certain of the underlying data and data 
analyses are allegedly ``unreproduceable.'' Further, the commenters 
assert that if better data were used, the OTC model AIM coatings rule 
would achieve greater VOC emissions reductions, relative to

[[Page 24971]]

the Federal AIM coatings rule, than was calculated in the Pechan Study 
(54 percent reduction versus 31 percent reduction), even if certain 
source categories were omitted from regulation under the OTC rule. For 
these reasons, the commenters state that EPA must not approve the 
proposed Virginia's AIM coatings rule as a SIP revision.\1\
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    \1\ One of the commenters has submitted a ``Request for 
Correction of Information'' (RFC) dated June 2, 2004, to EPA's 
Information Quality Guidelines Office in Washington, DC, which 
raises substantively similar issues to those raised by this comment. 
By letter dated February 25, 2005 from Robert Brenner, Principal 
Deputy Assistant Administrator to the Counsel for Sherwin Williams 
Company, EPA responded separately to the RFC. A copy of that letter 
is included in the administrative record for this final rulemaking.
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    Response: EPA disagrees with this comment. What the commenters 
characterize as the Pechan Study is not at issue in this rulemaking. 
The Pechan Study was not submitted to EPA by Virginia in its request 
that EPA approve its AIM coatings rule.\2\ The validity of the Pechan 
Study data is not at issue because Virginia did not request approval of 
a quantified amount of VOC emission reduction from the enactment of its 
regulation. Rather, this AIM coatings regulation has been submitted by 
Virginia, and is being considered by EPA, on the basis that it 
strengthens the existing Virginia SIP. The commenters do not dispute 
that the Virginia AIM coatings rule will, in fact, reduce VOC 
emissions.
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    \2\ The commenters concede that the Pechan Study and related 
spreadsheet are not part of the record submitted to EPA by Virginia. 
They assert, however, that there are references to the Pechan Study 
in other materials submitted by Virginia. Whether or not the Pechan 
Study, or data from that study, was submitted to EPA does not alter 
our analyses or conclusion, described herein, that the Pechan Study 
is not relevant in this rulemaking. Consequently, because the Pechan 
Study is not relevant to this rulemaking, the commenter's reliance 
on the document entitled, ``A Summary of General Assessment Factors 
for Evaluating the Quality of Scientific and Technical 
Information,'' EPA 100/B-03-001 (June 2003), provided as exhibit C 
to SWC's comments, is misplaced. This ``Assessment Factors'' 
document describes the considerations EPA takes into account in 
evaluating scientific or technical information ``used in support of 
Agency actions.'' Assessment Factors, p.1. The Pechan Study is not 
being used in support of this rulemaking, therefore, EPA is under no 
obligation to evaluate the scientific or technical information in 
that study.
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    Section 110 of the Act provides the statutory framework for 
approval/disapproval of SIP revisions. Under the Act, EPA establishes 
NAAQS for certain pollutants. The Act establishes a joint Federal and 
state program to control air pollution and to protect public health. 
States are required to prepare SIPs for each designated ``air quality 
control region'' within their borders. The SIP must specify emission 
limitations and other measures necessary for that area to meet and 
maintain the required NAAQS. Each SIP must be submitted to EPA for its 
review and approval. EPA will review and must approve the SIP revision 
if it is found to meet the minimum requirements of the Act. See section 
110(k)(3) of the Act, 42 U.S.C. 7410(k)(3); see also, Union Elec. Co. 
v. EPA, 427 U.S. 246, 265, 96 S.Ct. 2518, 49 L.Ed.2d 474 (1976). The 
Act expressly provides that the states may adopt more stringent air 
pollution control measures than the Act requires with or without EPA 
approval. See section 116 of the Act, 42 U.S.C. 7416. EPA must 
disapprove state plans, and revisions thereto, that are less stringent 
than a standard or limitation provided by Federal law. See section 
110(k) of the Act, 42 U.S.C. 7410 (k); see also Duquesne Light v. EPA, 
166 F.3d 609 (3d Cir. 1999).
    The Pechan Study is not part of Virginia's submission in support of 
its AIM coatings rule. Because Virginia's February 23, 2004 submission 
does not seek approval of a specific amount of emissions reductions, 
the level of emissions reductions that might be calculable using data 
contained in the Pechan Study is irrelevant to whether EPA should 
approve this SIP revision.\3\ The only relevant inquiry at this time is 
whether this SIP revision meets the minimum criteria for approval under 
the Act, including the requirement that Virginia's AIM coatings rule be 
at least as stringent as the otherwise applicable Federal AIM coatings 
rule set forth at 40 CFR 59.400, subpart D.\4\
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    \3\ After submission of a request for approval of a quantified 
amount of emissions reductions credit due to the AIM coatings rule 
by the Commonwealth, EPA will evaluate the credit attributable to 
the rule. Whatever methodology and data the Commonwealth uses in 
such a request will become ripe for public comment.
    \4\ The commenters assert that ``it makes no difference whether 
Virginia is asking for credits at this time for there to be a Data 
Quality Act challenge,'' apparently because the fact that material 
from the Pechan Study appears in the rulemaking docket for this 
action, there is ``dissemination of flawed data.'' This ignores that 
fact that EPA is taking no stance on the Pechan Study and its 
underlying data. That study is irrelevant to our analysis as to 
whether the Virginia AIM rule is approvable as a measure meeting the 
requirements of section 110 of the Act that strengthens the Virginia 
SIP. EPA is not required to address irrelevant material merely 
because it is in the rulemaking docket. Section 307(d)(6)(B) of the 
CAA (which applies to, among other things, SIP revisions, see 42 
U.S.C. 7607(d)(1)(B)), requires EPA to respond to ``each of the 
significant comments, criticisms, and new data submitted * * * 
during the public comment period.'' 42 U.S.C. 7607(d)(6)(B). The 
United States Supreme Court has held that ``irrelevant'' matter in 
the docket is not ``significant'' as that term is used in the CAA, 
and EPA has no duty to respond to it. See Whitman v. Amer. Trucking 
Ass'ns., Inc., 531 U.S. 457, n. 2 at 470 (2001). With respect to the 
Pechan data, we are not disseminating it, but we rather are 
fulfilling our statutory role as custodian of a docket containing 
irrelevant material submitted by third parties.
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    EPA has concluded that the Virginia AIM coatings rule meets the 
criteria for approvability. It is worth noting that EPA agrees with the 
commenters' conclusion that the Virginia AIM coatings rule is more 
stringent than the Federal AIM coatings rule, though not for the 
reasons given by the commenters, i.e., that the commenters' ``better'' 
data demonstrates that OTC Model AIM coatings rule achieves a 54 
percent, as opposed to the Pechan Study's 31 percent reduction in VOC 
emissions beyond that required by the Federal AIM coatings rule. 
Rather, EPA has determined that the Virginia's AIM coatings rule is, on 
its face, more stringent than the Federal AIM coatings rule. Examples 
of categories for which Virginia's AIM coatings rule is facially more 
stringent than the Federal AIM coatings rule include, but are not 
limited to, the VOC content limit for non-flat high gloss coatings and 
antifouling coatings. The Federal AIM coatings rule VOC content limit 
for non-flat high gloss coatings is 380 grams/liter while the Virginia 
AIM coatings rule's limit is 250 grams/liter, and the Federal AIM 
coatings rule's VOC content limit for anti-fouling coatings is 450 
grams/liter while the Virginia AIM coatings rule's is 400 grams/liter. 
Examples of where Virginia AIM coatings rule is as stringent, but not 
more stringent, than the Federal AIM coatings rule include, but are not 
limited to, the VOC content limit for antenna coatings and low-solids 
coatings. In both rules the VOC content limits for these categories are 
530 grams/liter and 120 grams/liter, respectively. Thus, on a category 
by category basis, EPA believes that Virginia's AIM coatings rule is as 
stringent or more stringent than the Federal AIM coatings rule. 
Further, EPA has received no comments that the Virginia AIM coatings 
rule is less stringent than the Federal AIM coatings rule.
    B. Comment: The Virginia AIM Coatings Rule Was Adopted in Violation 
of Clean Air Act Section 183(e)(9)--The commenters state that in 1998, 
after a seven-year rule development process, EPA promulgated its 
nationwide emission limitation for AIM coatings pursuant to Clean Air 
Act section 183(e). The commenters note that Virginia's AIM coatings 
rule seeks to impose numerous VOC emission limits that will be more 
stringent than the corresponding limits in EPA's regulation. The 
commenters assert that

[[Page 24972]]

section 183(e)(9) requires that any state which proposes regulations to 
establish emission standards other than the Federal standards for 
products regulated under Federal rules shall first consult with the EPA 
Administrator. The commenters believe that Virginia failed to engage in 
that required consultation, and, therefore, that: (1) Virginia violated 
section 183(e)(9) in its adoption of the Virginia AIM coatings rule, 
and (2) approval of the AIM coatings rule by EPA would violate, and is, 
therefore, prohibited by, sections 110(a)(2)(A) and (a)(2)(E) of the 
Act.
    Response: EPA disagrees with this comment. Contrary to the 
implication of the commenters, section 183(e)(9) does not require 
states to seek EPA's permission to regulate consumer products. By its 
explicit terms, the statute contemplates consultation with EPA only 
with respect to ``whether any other state or local subdivision has 
promulgated or is promulgating regulations on any products covered 
under [section 183(e)].'' The commenters erroneously construe this as a 
requirement for permission rather than informational consultation. 
Further, the final Federal AIM coatings regulations at 40 CFR 59.410 
explicitly provide that states and their political subdivisions retain 
authority to adopt and enforce their own additional regulations 
affecting these products. See also 63 FR 48848, 48884 (September 11, 
1998). In addition, as stated in the preamble to the final rule for 
architectural coatings, Congress did not intend section 183(e) to 
preempt any existing or future state rules governing VOC emissions from 
consumer and commercial products. See id. at 48857. Accordingly, 
Virginia retains authority to impose more stringent limits for 
architectural coatings as part of its SIP, and its election to do so is 
not a basis for EPA to disapprove the submission for inclusion into the 
SIP. See Union Elec. Co. v. EPA, 427 U.S. at 265-66 (1976). Although 
national uniformity in consumer and commercial product regulations may 
have some benefit to the regulated community, EPA recognizes that some 
localities may need more stringent regulation to combat more serious 
and more intransigent ozone nonattainment problems.
    Further, there was ample consultation with EPA prior to Virginia's 
adoption of its AIM coatings rule. On March 28, 2001, the OTC adopted a 
Memorandum of Understanding (MOU) on regional control measures, signed 
by all the member states of the OTC, including Virginia, which 
officially made available the OTC model rules, including the AIM 
coatings model rule. See the discussion of this MOU in the Report of 
the Executive Director, OTC, dated July 24, 2001, a copy of which has 
been included in administrative record of this final rulemaking. That 
MOU includes the following text, ``WHEREAS after reviewing regulations 
already in place in OTC and other States, reviewing technical 
information, consulting with other States and Federal agencies, 
consulting with stakeholders, and presenting draft model rules in a 
special OTC meeting, OTC developed model rules for the following source 
categories * * * architectural and industrial maintenance coatings * * 
*.'' (a copy of the signed March 28, 2001 MOU has been placed in the 
administrative record of this final rulemaking).
    Therefore, there is no validity to the commenters' assertion that 
Virginia failed to consult with EPA in the adoption of its AIM coatings 
rule. EPA was fully cognizant of the requirements of the Virginia AIM 
coatings rule before its formal adoption by Virginia.\5\ For all these 
reasons, EPA disagrees that Virginia violated section 183(e)(9) in its 
adoption of the its AIM coatings rule, and disagrees that approval of 
the Virginia AIM coatings rule by EPA is in violation of or prohibited 
by sections 110(a)(2)(A) and (a)(2)(E) of the Act.
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    \5\ While EPA reviewed the model AIM coatings rule and the draft 
Virginia version of that rule, EPA had no authority under the Clean 
Air Act to dictate the exact language or requirements of the rule. 
As explained previously, EPA's role is to review a state submission 
to ensure it meets the applicable criteria of section 110 generally, 
and, in the case of an AIM rule to ensure it is at least as 
stringent as the otherwise applicable Federal rule.
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    C. Comment: The Virginia AIM Coatings Rule Was Adopted in Violation 
of Clean Air Act Section 184(c), and Approval of the SIP Revision 
Would, Itself, Violate that Section--The commenters believe the OTC 
violated Clean Air Act section 184(c)(1) by failing to ``transmit'' its 
recommendations to the Administrator, and that the OTC's violation was 
compounded by the Administrator's failure to review the Model Rule 
through the notice, comment and approval process required by Clean Air 
Act section 184(c)(2)-(4). The commenters assert that these purported 
violations of the Clean Air Act prevent Virginia from adopting the 
Virginia AIM coatings rule, and now prevent EPA from validly approving 
that rule as a revision to the Virginia SIP.
    Response: EPA disagrees with this comment. Section 184(c)(1) of the 
Act states that ``the [OTC] may, after notice and opportunity for 
public comment, develop recommendations for additional control measures 
to be applied within all or a part of such transport region if the 
commission determines such measures are necessary to bring any area in 
such region into attainment by the dates provided by this subpart.'' It 
is important to note that the OTC model AIM coatings rule was not 
developed pursuant to section 184(c)(1), which provision is only 
triggered ``[u]pon petition of any State within a transport region 
established for ozone * * *.'' No such petition preceded the 
development of the model AIM coatings rule. Nor, for that matter, was 
development of a rule upon State petition under section 184(e)(1) meant 
to be the exclusive mechanism for development of model rules within the 
OTC. Nothing in section 184 prevents the voluntary development of model 
rules without the prerequisite of a state petition. Section 184 is a 
voluntary process and the OTC may opt for that process or another. This 
provision of the Act was not intended to prevent OTC's development of 
model rules which states may individually choose to adapt and adopt on 
their own, as Virginia did, basing its AIM coatings rule on the model 
developed within the context of the OTC. In developing its state rule 
from the OTC model, Virginia was free to adapt that rule as it saw fit 
(or to leave the OTC model rule essentially unchanged), so long as its 
rule remained at least as stringent as the Federal AIM coatings rule.
    As previously stated, on March 28, 2001, the OTC member states 
signed a MOU on regional control measures, including the AIM coatings 
model rule. The OTC did not develop recommendations to the 
Administrator for additional control measures. The MOU stated that 
implementing these rules will help attain and maintain the 1-hour 
standard for ozone and were therefore made available to the states for 
use in developing their own regulations.\6\
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    \6\ The commenters argue that section 184 either does not 
require a formal petition to be triggered, or alternatively that the 
MOU between the OTC states qualifies as a ``petition.'' With respect 
to their first argument, section 184(c) says that the OTC ``may, 
after notice and opportunity for public comment, develop 
recommendations for additional control measures * * *'' and that the 
recommendations shall be presented to the EPA Administrator. This 
mechanism is triggered ``upon petition of any State with a transport 
region established for ozone, and based on a majority vote of the 
Governors on the Commission (or their designees) * * *.'' 42 U.S.C. 
7511d(c)(1) (emphasis added). The clear and unambiguous language of 
the Act requires a petition and a vote. We reasonably interpret 
section 184(c), in light of the obligation to conduct a vote, to 
require the petition to be a manifestation of an express intent to 
invoke the section 184(c) process. Further, any petition would need 
to be sufficient in its clarity to put members on notice of their 
obligation to hold a vote and fulfill the other provisions of the 
section 184 process. We do not believe that a document which in 
hindsight might be construed as an inadvertent opt-in to the 
voluntary section 184 process could be the petition affirmatively 
intended by the Act.
    With respect to the argument that the MOU is in hindsight a 
``petition'' triggering the section 184 rule development process, 
nothing in the record indicates that the OTC treated this MOU as a 
petition to initiate the section 184 process. This is not surprising 
because the MOU's plain language recites that the model rules had 
already been developed that by the time the MOU was signed 
(``WHEREAS * * * OTC developed final model rules for the following 
source categories* * *.''). Under section 184(c) the petition 
initiates the voluntary section 184 rule development process. 42 
U.S.C. 7511d(c)(1). The MOU, however, came near the end of the OTC's 
model rule development process. This is a strong indication that the 
OTC did not intend the AIM coatings rule, or the other rules recited 
in the MOU, to be subject to the section 184 process. By its failure 
to express an intention to trigger the section 184 rule development 
mechanism, we reject the argument that the MOU constitutes a section 
184(c) petition. The MOU neither expressly nor inadvertently opted-
in the OTC states to the section 184 process.

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[[Page 24973]]

    Even though the OTC did not develop the model AIM coatings rule 
pursuant to section 184(c)(1) of the Act, nevertheless it provided 
ample opportunity for OTC member and stakeholder comment by holding 
several public meetings concerning the model rules including the AIM 
coatings model rule. The sign-in sheets or agenda for four meetings 
held in 2000 and 2001 at which the OTC AIM coatings model was discussed 
(some of which reflect the attendance of a representative of the EPA 
and/or the commenters), have been placed in the administrative record 
for this final rulemaking.
    D. Comment: The Virginia AIM Coatings Rule violates the Commerce 
Clause and the Equal Protection Clause of the U.S. Constitution--The 
commenters' title heading of this comment states that the Virginia AIM 
coatings rule violates the Equal Protection Clause of the U.S. 
Constitution, but the text that follows that title heading provides no 
arguments or assertions to support this claim. In both the title 
heading and the text that follows, the commenters claim that the 
Virginia AIM coatings rule violates the Commerce Clause of Article I, 
Section 8, of the U.S. Constitution, because it allegedly imposes an 
unreasonable burden on interstate commerce. The commenters assert that 
because the Virginia AIM coatings rule contains VOC limits and other 
provisions that differ from the Federal AIM coatings rule in 40 CFR 
59.400, the rule imposes unreasonable restrictions and burdens on the 
flow of coatings in interstate commerce. The commenters further claim 
that the burdens of the Virginia AIM coatings rule are excessive and 
outweigh the benefits of the rule. The commenters argue that EPA should 
disapprove the SIP revision on this basis.
    Response: As indicated previously, the commenters provide no 
arguments or assertions as to the claim made in the title heading of 
this comment that the Virginia AIM coatings rule violates the Equal 
Protection Clause of the U.S. Constitution (see pages 14-16 of the 
letter dated July 7, 2005 from the SWC to Docket ID No. VA151-5077, EPA 
Proposal to Approve SIP Revision Submitted by the Commonwealth of 
Virginia Concerning Architectural and Industrial Maintenance (AIM) 
Coatings). Moreover, the text of the comment following the title 
heading does not reference or even make mention of the Equal Protection 
Clause. Lastly, in no other comment submitted by the SWC on EPA's June 
7, 2004 proposed approval of Virginia's AIM coatings rule is there any 
mention or reference to the Equal Protection Clause of the U.S. 
Constitution. EPA does not believe that any provision of the Virginia 
AIM rule violates the Equal Protection Clause of the U.S. Constitution.
    Regarding the comment that Virginia's AIM coatings rule violates 
the Commerce Clause of the U.S. Constitution, EPA agrees with this 
comment only to the extent that it acknowledges that AIM coatings are 
products in interstate commerce and that state regulations on coatings 
therefore have the potential to violate the Commerce Clause. EPA 
understands the commenters' practical concerns caused by differing 
state regulations, but disagrees with the commenters' view that the 
Virginia's AIM coatings rule impermissibly impinges on interstate 
commerce. A state law may violate the Commerce Clause in two ways: (1) 
By explicitly discriminating between interstate and intrastate 
commerce; or (2) even in the absence of overt discrimination, by 
imposing an incidental burden on interstate commerce that is markedly 
greater than that on intrastate commerce. The Virginia AIM coatings 
rule does not explicitly discriminate against interstate commerce 
because it applies evenhandedly to all coatings manufactured or sold 
for use within the state. At most, therefore, the Virginia AIM coatings 
rule could have an incidental impact on interstate commerce. In the 
case of incidental impacts, the Supreme Court has applied a balancing 
test to evaluate the relative impacts of a state law on interstate and 
intrastate commerce. See, Pike v. Bruce Church, Inc., 397 U.S. 137 
(1970). Courts have struck down even nondiscriminatory state statutes 
when the burden on interstate commerce is ``clearly excessive in 
relation to the putative local benefits.'' Id. at 142.
    At the outset, EPA notes that it is unquestionable that Virginia 
has a substantial and legitimate interest in obtaining VOC emissions 
for the purpose of attaining the ozone NAAQS. The adverse health 
consequences of exposure to ozone are well known and well established 
and need not be repeated here. See, e.g., National Ambient Air Quality 
Standards for Ozone: Final Response to Remand, 68 FR 614, 620-25 
(January 6, 2003). Thus, the objective of Virginia in adopting the 
Virginia AIM coatings rule is to protect the public health of the 
citizens of Virginia. The courts have recognized a presumption of 
validity where the state statute affects matters of public health and 
safety. See, e.g., Kassel v. Consolidated Freightways Corp. of 
Delaware, 450 U.S. 662, 671 (1980). Moreover, even where the state 
statute in question is intended to achieve more general environmental 
goals, courts have upheld such statutes notwithstanding incidental 
impacts on out of state manufacturers of a product. See, e.g, Minnesota 
v. Clover Leaf Creamery, et al., 449 U.S. 456 (1981) (upholding state 
law that banned sales of milk in plastic containers to conserve energy 
and ease solid waste problems).
    The commenters assert, without reference to any facts, that the 
Virginia AIM coatings rule imposes burdens and has impacts on consumers 
that are ``clearly excessive in relation to the purported benefits * * 
*.'' By contrast, EPA believes that any burdens and impacts occasioned 
by the Virginia AIM coatings rule are not so overwhelming as to trump 
the state's interest in the protection of public health. First, the 
Virginia AIM coatings rule does not restrict the transportation of 
coatings in commerce itself, only the sale of nonconforming coatings 
within the Northern Virginia VOC Emissions Control Area designated in 9 
VAC 5-20-206. The Commonwealth's rule excludes coatings sold or 
manufactured for use exclusively outside of the Northern Virginia VOC 
Emissions Control Area or for shipment to others. 9 VAC 5-40-7120 C. 
The Virginia AIM coatings rule cannot be construed to interfere with 
the transportation of coatings through the state en route to other 
states. As such, EPA believes that the cases concerning impacts on the 
interstate modes of transportation themselves are inapposite. See, 
e.g., Bibb v. Navajo Freight Lines, 359 U.S. 520 (1938).

[[Page 24974]]

    Second, the Virginia AIM coatings rule is not constructed in such a 
way that it has the practical effect of requiring extraterritorial 
compliance with the state's VOC limits. The Virginia AIM coatings rule 
only governs coatings manufactured or sold for use within the Northern 
Virginia VOC Emissions Control Area. The manufacturers of coatings in 
interstate commerce are not compelled to take any particular action, 
and they retain a range of options to comply with the rule, including, 
but not limited to: (1) Ceasing sales of nonconforming products in the 
Northern Virginia VOC Emissions Control Area ; (2) reformulating 
nonconforming products for sale in the Northern Virginia VOC Emissions 
Control Area and passing the extra costs on to consumers in that area; 
(3) reformulating nonconforming products for sale more broadly; (4) 
developing new lines of conforming products; or (5) entering into 
production, sales or marketing agreements with companies that do 
manufacture conforming products. Because manufacturers or sellers of 
coatings in other states are not forced to meet Virginia's regulatory 
requirements elsewhere, the rule does not impose the type of obligatory 
extraterritorial compliance that the courts have considered 
unreasonable. See, e.g., NEMA v. Sorrell, 272 F.3d 104 (2d Cir. 2000) 
(state label requirement for light bulbs containing mercury sold in 
that state not an impermissible restriction). It may be that the 
Virginia AIM coatings rule will have the effect of reducing the 
availability of coatings or increasing the cost of coatings within the 
Northern Virginia VOC Emissions Control Area, but courts typically view 
it as the prerogative of the state to make regulatory decisions with 
such impacts upon its own citizens. NPCA v. City of Chicago, 45 F.3d 
1124 (7th Cir. 1994), cert. denied, 515 U.S. 1143 (1995) (local 
restriction on sales of paints used by graffiti artists may not be the 
most effective means to meet objective, but that is up to the local 
government to decide).
    Third, the burdens of the Virginia AIM coatings rule typically do 
not appear to fall more heavily on interstate commerce than upon 
intrastate commerce. The effect on manufacturers and retailers will 
fall on all manufacturers and retailers regardless of location if they 
intend their products for sale within the Northern Virginia VOC 
Emissions Control Area designated in 9 VAC 5-20-206, and does not 
appear to have the effect of unfairly benefitting in-state 
manufacturers and retailers. The mere fact that there is a burden on 
some companies in other states does not alone establish impermissible 
interference with interstate commerce. See, Exxon Corp. v. Maryland, 
437 U.S. 117, 126 (1978).
    In addition, EPA notes that courts do not typically find violations 
of the Commerce Clause in situations where states have enacted state 
laws with the authorization of Congress. See, e.g., Oxygenated Fuels 
Assoc., Inc. v. Davis, 63 F. Supp. 1182 (E.D. Cal. 2001) (state ban on 
MTBE authorized by Congress); NEMA v. Sorell, 272 F.3d 104 (2d Cir. 
2000) (RCRA's authorization of more stringent state regulations confers 
a ``sturdy buffer'' against Commerce Clause challenges). Section 183(e) 
of the Act governs the Federal regulation of VOCs from consumer and 
commercial products, such as coatings covered by the Virginia AIM 
coatings rule. EPA has issued a Federal regulation that provides 
national standards, including VOC content limits, for such coatings. 
See 40 CFR 59.400 et seq. Congress did not, however, intend section 
183(e) to preempt additional state regulation of coatings, as is 
evident in section 183(e)(9) which indicates explicitly that states may 
regulate such products. EPA's regulations promulgated pursuant to the 
Act recognized that states might issue their own regulations, so long 
as they meet or exceed the requirements of the Federal regulations. 
See, e.g., the National Volatile Organic Compound Emission Standards 
for Architectural Coatings, 40 CFR 59.410, and the Federal Register 
which published the standards, 63 FR 48848, 48857 (September 11, 1998). 
Thus, EPA believes that Congress has clearly provided that a state may 
regulate coatings more stringently than other states.
    In section 116 of the Act, Congress has also explicitly reserved to 
states and their political subdivisions the right to adopt local rules 
and regulations to impose emissions limits or otherwise abate air 
pollution, unless there is a specific Federal preemption of that 
authority. When Congress intended to create such Federal preemption, it 
does so through explicit provisions. See, e.g., section 209(a) of the 
Act, which pertains to state or local emissions standards for motor 
vehicles; and section 211 of the Act which pertains to fuel standards. 
Moreover, the very structure of the Act is based upon ``cooperative 
federalism,'' which contemplates that each state will develop its own 
state implementation plan, and that states retain a large degree of 
flexibility in choosing which sources to control and to what degree in 
order to attain the NAAQS by the applicable attainment date. Union 
Electric Co. v. EPA, 427 U.S. 246 (1976). Given the structure of the 
Act, the mere fact that one state might choose to regulate sources 
differently than another state is not, in and of itself, contrary to 
the Commerce Clause.
    Finally, EPA understands that there may be a practical concern that 
a plethora of state regulations creating a checkerboard of differing 
requirements would not be the best approach to regulating VOCs from AIM 
coatings or other consumer products. Greater uniformity of standards 
does have beneficial effects in terms of more cost effective and 
efficient regulations. As EPA noted in its own AIM coatings rule, 
national uniformity in regulations is also an important goal because it 
will facilitate more effective regulation and enforcement, and minimize 
the opportunities for undermining the intended VOC emission reductions. 
63 FR 48856-48857. However, EPA also recognizes that Virginia and other 
states with longstanding ozone nonattainment problems have local needs 
for VOC reductions that may necessitate more stringent coatings 
regulations. Under section 116 of the Act, states have the authority to 
do so, and significantly, many states in the Northeast have joined 
together to prepare and promulgate regulations more restrictive than 
the Federal AIM coatings rule to apply uniformly across that region. 
This regional collaboration provides regional uniformity of standards. 
Virginia may have additional burdens to insure compliance with its 
rule, but for purposes of this action, EPA presumes that Virginia takes 
appropriate actions to enforce it as necessary. EPA has no grounds for 
disapproval of the SIP revision based upon the commenters' Commerce 
Clause comment.
    E. Comment: The Emission Limits and Compliance Schedule in the 
Virginia AIM Coatings Rule are Neither Necessary nor Appropriate to 
Meet Applicable Requirements of the Clean Air Act--The commenters claim 
that the Virginia AIM coatings rule is not ``necessary or appropriate'' 
for inclusion in the Virginia SIP, because EPA did not direct Virginia 
to achieve VOC reductions through the AIM coatings rule, but left it to 
the Commonwealth to decide how such reductions can be achieved. The 
commenters further claim that the Virginia AIM coatings rule is not 
necessary or appropriate for inclusion in the Virginia SIP because of 
the numerous alleged procedural and substantive failings on the part of 
VADEQ in promulgating the rule. The commenters assert that prior to 
proposing a SIP revision, the state must first provide reasonable 
notice and a

[[Page 24975]]

public hearing, thereby implying that Virginia failed to do so. The 
commenters also assert that in its rulemaking materials for the 
Virginia AIM coatings rule, the VADEQ claimed that it was ``required'' 
by EPA to pursue revisions to the Virginia AIM coatings rule (as 
opposed to other potential measures) thereby unduly narrowing the range 
of alternatives that the VADEQ considered. The commenters assert that 
VADEQ's position that revisions to the Virginia AIM coatings rule were 
required by EPA, and thus necessary, has no basis in fact.
    Response: EPA disagrees with this comment. If fulfillment of the 
``necessary or appropriate'' condition of section 110(a)(2)(A) required 
EPA first to determine that a measure was necessary or appropriate and 
then to require a state to adopt that measure, this condition would 
present a ``catch 22'' situation. EPA does not generally have the 
authority to require the State to enact and include in its SIP any 
particular control measure, even a ``necessary'' one.\7\ However, under 
section 110(a)(2)(a) a control measure must be either ``necessary or 
appropriate'' (emphasis added); the use of the disjunctive ``or'' does 
not provide that a state must find that only a certain control measure 
and no other measure will achieve the required reduction. Rather, a 
state may adopt and propose for inclusion in its SIP any measure that 
meets the other requirements for approvability so long as that measure 
is at least an appropriate, though not exclusive, means of achieving 
emissions reduction. See also, Union Elec. Co. v. EPA, 427 U.S. 246, 
264-266 (1976) (holding that ``necessary'' measures are those that meet 
the `minimum conditions' of the Act, that a state ``may select whatever 
mix of control devices it desires,'' even ones more stringent than 
Federal standard, to achieve compliance with a NAAQS, and that ``the 
Administrator must approve such plans if they meet the minimum 
requirements'' of section 110(a)(2) of the Act). Clearly, in light of 
the Act and the case law, EPA's failure to specify that a state adopt a 
specific control measure cannot dictate whether a specific measure is 
necessary or appropriate.
---------------------------------------------------------------------------

    \7\ As noted in Virginia v. EPA, 108 F.3d 1397 (D.C. Cir. 1997), 
EPA does have the authority within the mechanism created by section 
184 of the Act to order states to adopt control measures recommended 
by the OTC, if EPA agrees with and approves that recommendation. 108 
F.3d, n.3 at 1402. As we have previously stated, the OTC model AIM 
coatings rule was not developed pursuant to the section 184 
mechanism; EPA therefore has no authority to order that Virginia or 
any other state adopt this measure in order to reduce VOC emissions.
---------------------------------------------------------------------------

    In this particular instance, Virginia needs reductions to satisfy 
the requirements for rate-of-progress (ROP) and attainment plans 
(including contingency measures) for the reclassified Metropolitan 
Washington DC severe 1-hour ozone nonattainment area. It is Virginia's 
prerogative to develop whatever rule or set of rules it deems necessary 
or appropriate such that the rule or rules will collectively achieve 
the additional emission reductions needed to satisfy the ROP and 
attainment plan requirements for its 1-hour ozone severe nonattainment 
area. Because commenters might find it more necessary or appropriate to 
obtain the needed VOC emission reductions elsewhere is not a basis for 
EPA to disapprove the rule implementing Virginia's determination of the 
best approach to obtain the needed reductions.
    EPA has reviewed the Commonwealth's February 23, 2004 SIP revision 
submission of the Virginia AIM coatings rule, and finds no indication 
of a claim by VADEQ that EPA ``required'' the Commonwealth to revise 
the Virginia AIM coatings rule. In its response to this same comment 
raised by the SWC during the Commonwealth's rule adoption process, the 
VADEQ responded that the proposed AIM rule was one of the control 
measures selected by the Metropolitan Washington Air Quality Committee 
in order to implement a regional plan for the Washington DC-MD-VA ozone 
nonattainment area, and did not respond that EPA ``required'' the 
proposed AIM coatings rule.
    EPA also disagrees with the commenters' view of Virginia's public 
notice and hearing procedure. In its February 23, 2004 SIP revision 
submittal, the VADEQ includes a copy of the public notice published in 
the Washington Times announcing its intent to adopt the AIM coatings 
rule, and to hold two public hearings (providing date, time, venue), 
and instructions for submitting comments. That public notice states 
that it is being published in accordance with subsection 2.2-4007 of 
the Code of Virginia and section 110(a)(1) of the of the Federal Clean 
Air Act. The public notice's citation of section 110(a)(1) of the Act 
serves as Virginia's notification that the proposed revised VOC 
regulations would be revisions to the Virginia SIP. Indeed, from the 
documentation provided in its February 23, 2004 submittal and from the 
fact that both commenters testified and submitted written comments 
pursuant to the hearing and these published notices, EPA has determined 
that Virginia fulfilled the requirements of section 110(a) of the Act 
with respect to reasonable notice and a public hearing in connection 
with SIP revision submissions.
    Virginia's February 23, 2004 SIP revision submittal provides 
evidence and certification that it has the legal authority to adopt its 
AIM coatings rule and that it has followed all of the requirements in 
the State law and constitution that are related to adoption of the 
plan. As noted in BCCA Appeal Group v. EPA, 355 F.3d 817 (5th Cir. 
2004):

    [T]he CAA only requires that the states provide ``necessary 
assurances that the State * * * will have adequate * * * authority 
under State (and as appropriate, local) law to carry out such 
implementation plan (and it is not prohibited by any provision of * 
* * State law from carrying out such implementation plan or portion 
thereof).'' 42 U.S.C. 7410(a)(2)(E)(i). There is no statutory 
requirement that the EPA review SIP submissions to ensure compliance 
with state law * * *. Such a requirement would be extremely 
burdensome and negate the rationale for having the state provide the 
assurances in the first instance. The EPA is entitled to rely on a 
state's certification unless it is clear that the SIP violates state 
law, and proof thereof, such as a state court decision, is presented 
to EPA during the SIP approval process. 355 F.3d 817, n.11 at 830.

The commenters have offered no proof, such as a Commonwealth court 
decision, that Virginia's AIM coatings rule clearly violates local law. 
EPA therefore is relying on Virginia's certification that it had the 
legal authority to adopt its AIM coatings rule and that it has followed 
all of the requirements of the Commonwealth's law that are related to 
adoption of this SIP revision.

    F. Comment: EPA's Action to Approve or Disapprove Virginia's AIM 
Coatings Rule is a ``Significant Regulatory Action'' as defined by 
Executive Order 12866, 58 FR 51735 (September 30, 1993).
    Response: EPA disagrees with this comment. 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. The commenters allege 
that EPA's approval of the Virginia AIM coatings rule is a 
``significant regulatory action'' because it meets several of the 
following criteria specified in Executive Order 12866: ``[it will have] 
an annual effect on the economy of $100 million or more or [it will] 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or

[[Page 24976]]

safety, or State, local, or tribal governments or communities * * *.'' 
However, this action merely approves existing state law as meeting 
Federal requirements. EPA's approval of this SIP revision imposes no 
additional requirements beyond those imposed by state law. Accordingly, 
this action meets none of the criteria listed above. Any cost or any 
material adverse effects on the economy, a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities exist, if 
at all, due to Virginia's approval of its state AIM coatings rule, not 
by EPA's approval of that rule into the Virginia SIP. If EPA failed to 
act on the Virginia AIM coatings rule, the effects of the rule would 
not be changed because this rule went effect in Virginia on January 1, 
2005. Nothing that EPA might do at this point in time alters that fact.
    Furthermore, Virginia voluntarily adopted its version of the OTC 
model AIM coatings rule and, as the commenters themselves acknowledge, 
EPA legally could not impose this control measure on the State. 
Virginia v. EPA, 108 F.3d 1397 (D.C. Cir. 1997). EPA's approval of this 
state rule merely fulfills its statutory obligation under the Act to 
review SIP submissions and approve state choices, provided that they 
meet the criteria of the Clean Air Act.
    G. Comment: The Virginia AIM Coatings Rule is Arbitrary and 
Capricious--The commenters assert that the Virginia AIM coatings rule 
violates Virginia law as being arbitrary and capricious, because the 
record supporting Virginia's actions is deficient in numerous areas. 
First, the commenters allege that Virginia has not undertaken any 
independent cost analyses, and instead relied solely on information 
used by the CARB to support the suggested control measure (SCM). 
Second, the commenters assert that VADEQ failed to address any relevant 
differences between climatic conditions or the markets for the 
regulated products in Virginia and California. Third, the commenters 
allege that the analyses performed by the Commonwealth in adopting the 
Virginia AIM coatings rule are insufficient to satisfy Subsection 
10.1--1307.E of the Code of Virginia. Finally, the commenters assert 
that Virginia's adoption of its AIM coatings rule is arbitrary and 
capricious because its does not include an averaging provision for 
inclusion in Virginia SIP as advocated by the commenters.
    Response: EPA disagrees with this comment. The cost per ton figure 
determined by Virginia in its economic analysis, its decision to rely 
upon information from California and its decision whether to include 
averaging provisions in its final AIM coatings rule, are all decisions 
which fall within a state's purview, and issues regarding those 
decisions are rightly raised by interested parties to the state during 
its regulatory adoption process. The commenters raised the same issues 
in regard to Subsection 10.1-1307.E of the Code of Virginia in comments 
submitted to VADEQ during the Commonwealth's adoption process for its 
AIM coatings rule. The VADEQ responded that the analyses performed in 
support of its regulatory action to adopt the AIM coatings rule are 
adequate to satisfy the requirements of Subsection 10.1-1307.E of the 
Code of Virginia. Virginia's February 23, 2004 SIP revision submittal 
provides evidence and certification that it has the legal authority to 
adopt its AIM coatings rule and that it has followed all of the 
requirements in the State law and constitution that are related to 
adoption of the plan. (Please see EPA's response to Comment II. E.). 
See BCCA Appeal Group v. EPA, 355 F.3d 817, n.11 at 830 (EPA may rely 
on the state's certification that it has complied with applicable state 
requirements for promulgating a rule submitted as a revision to its 
SIP).
    H. Additional Comments Submitted to the OTC and Commonwealth of 
Virginia Included, by Reference, in the Comments Submitted to EPA on 
the June 7, 2004 Proposed Approval of Virginia's AIM Coatings Rule (69 
FR 31780):
    (1) The NPCA alleges that its preferred alternative regulatory 
scheme would allegedly result in at least 70 percent of the emissions 
that would be secured by the Virginia AIM coatings rule while securing 
additional VOC reductions beyond the national AIM coatings rule. The 
NPCA comments that its proposal should be considered by Virginia as a 
viable alternative to the OTC model rule.
    (2) The commenters request that the Virginia AIM coatings rule 
retain the Federal AIM coatings rule's VOC limits for the following 
subcategories: interior wood and semitransparent stains, interior wood 
sanding sealers, interior wood varnishes, interior wood primers, and 
porch, floor and deck coatings (opaque).
    (3) The commenters have concerns with the proposed standards for 
certain paints and coatings, e.g., interior wood clear and semi-
transparent stains, interior wood varnishes, interior wood sanding 
sealers, exterior wood primers, and floor coatings. The commenters 
assert that the proposed AIM coatings regulation is based upon the 
inaccurate assumption that compliant coatings are available or can be 
developed which will satisfy customer requirements and meet all of the 
performance requirements of these categories. The commenters contend 
that such coatings are not effectively within the limits of current 
technology and that this inaccurate assumption will result in increased 
and earlier repainting which can damage floors due to seasonal 
variations in temperature and humidity.
    (4) The commenters contend that the increase in emissions resulting 
from the performance issues and consequential repainting have not been 
considered.
    (5) A further comment contends that due to Virginia's climate, the 
added costs of heating trucks and warehouses to transport and store 
coatings will adversely impact manufacturers, shippers, end users and 
on society in the form of more energy consumption.
    Response: With regard to the comments submitted to the OTC, and to 
Virginia on its proposed AIM coatings rule and subsequently, by 
reference, to EPA on its June 7, 2004 proposed approval of Virginia's 
February 23, 2004 SIP revision request, it is important to understand 
EPA's role with regard to review and approval or disapproval of rules 
submitted by states as SIP revisions. EPA can only take action upon the 
final adopted version of a state's regulation as submitted by that 
state in its SIP revision request. It is not within EPA's authority, by 
its rulemaking on the SIP revision or otherwise, to change or modify 
the text or requirements of a state regulation. Therefore, EPA cannot 
modify Virginia's AIM coatings regulation as recommended in the 
comments.
    The Commonwealth's reliance upon both technical and cost analyses 
from California in its decisions with regard to the provisions in its 
final AIM coatings rule are all decisions which fall within a state's 
purview, and issues regarding those decisions are rightfully raised by 
interested parties to the State during its regulatory adoption process. 
Therefore, it was appropriate that the commenters commented to the 
Commonwealth on these matters during the adoption of its AIM coatings 
rule. A complete SIP revision submission from a state includes a 
compilation of timely comments properly submitted to the state on the 
proposed SIP revision and the state's response thereto (40 CFR part 51, 
appendix V, 2.1 (h)). EPA has reviewed Virginia's February 23, 2004 SIP 
revision submittal and has determined that the commenters'

[[Page 24977]]

comments on those issues they have incorporated by reference on this 
rulemaking, along with the Commonwealth's responses to those issues, 
are included therein. Virginia's February 23, 2004 SIP revision 
submittal provides evidence and certification that it that it has the 
legal authority to adopt its AIM coatings rule and that it has followed 
all of the requirements in the State law that are related to adoption 
of the plan. (See EPA's response to Comment II. E.). In the context of 
a SIP approval, EPA's review of these state decisions is limited to 
whether the SIP revision meets the minimum criteria of the Act. 
Provided that the rule adopted by the state satisfies those criteria, 
EPA must approve such a SIP revision. See Union Elec. Co. v. EPA; BCCA 
Appeal Group v. EPA, 355 F.3d 817, n.11 at 830.

III. General Information Pertaining to SIP Submittals From 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 section 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 the Virginia SIP revision for the control of VOC 
emissions from AIM coatings submitted on February 23, 2004. The 
Virginia AIM coatings rule is part of the Virginia's strategy to 
satisfy the requirements of a severe ozone nonattainment area and to 
achieve and maintain the ozone standard in the Metropolitan Washington, 
DC ozone nonattainment area.

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.

[[Page 24978]]

    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 July 11, 2005. 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 AIM coatings 
rule, 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, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: May 2, 2005.
Donald S. Welsh,
Regional Administrator, Region III.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart VV--Virginia

0
2. In Sec.  52.2420, the table in paragraph (c) is amended by adding 
entries for Chapter 40, Part II, Article 49. The table in paragraph (e) 
is amended by adding an entry for ``Documents Incorporated by 
Reference'' after the existing entries for ``Documents Incorporated by 
Reference.'' The amendments read as follows:


52.2420  Identification of plan.

* * * * *
    (c) * * *

                                 EPA-Approved Virginia Regulations and Statutes
----------------------------------------------------------------------------------------------------------------