Approval and Promulgation of Air Quality Implementation Plans; Virginia; Emission Standards for Consumer Products in the Northern Virginia Volatile Organic Compound Emissions Control Area, 5035-5037 [E6-1210]
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Federal Register / Vol. 71, No. 20 / Tuesday, January 31, 2006 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2005–VA–0017; FRL–8026–
7]
Approval and Promulgation of Air
Quality Implementation Plans; Virginia;
Emission Standards for Consumer
Products in the Northern Virginia
Volatile Organic Compound Emissions
Control Area
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
hsrobinson on PROD1PC70 with PROPOSALS
AGENCY:
SUMMARY: EPA is proposing to approve
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. This action is
being taken under the Clean Air Act
(CAA or the Act).
DATES: Written comments must be
received on or before March 2, 2006.
ADDRESSES: Submit your comments,
identified by Docket ID Number EPA–
R03–OAR–2005–VA–0017 by one of the
following methods:
A. www.regulations.gov. Follow the
on-line instructions for submitting
comments.
B. E-mail: morris.makeba@epa.gov.
C. Mail: EPA–R03–OAR–2005–VA–
0017, Makeba Morris, Chief, Air Quality
Planning Branch, Mailcode 3AP21, U.S.
Environmental Protection Agency,
Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103.
D. Hand Delivery: At the previouslylisted EPA Region III address. Such
deliveries are only accepted during the
Docket’s normal hours of operation, and
special arrangements should be made
for deliveries of boxed information.
Instructions: Direct your comments to
Docket ID No. EPA–R03–OAR–2005–
VA–0017. EPA’s policy is that all
comments received will be included in
the public docket without change, and
may be made available online at
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through www.regulations.gov
or e-mail. The www.regulations.gov
Web site is an ‘‘anonymous access’’
system, which means EPA will not
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know your identity or contact
information unless you provide it in the
body of your comment. If you send an
e-mail comment directly to EPA without
going through www.regulations.gov,
your e-mail address will be
automatically captured and included as
part of the comment that is placed in the
public docket and made available on the
Internet. If you submit an electronic
comment, EPA recommends that you
include your name and other contact
information in the body of your
comment and with any disk or CD–ROM
you submit. If EPA cannot read your
comment due to technical difficulties
and cannot contact you for clarification,
EPA may not be able to consider your
comment. Electronic files should avoid
the use of special characters, any form
of encryption, and be free of any defects
or viruses.
Docket: All documents in the
electronic docket are listed in the
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, i.e., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
is not placed on the Internet and will be
publicly available only in hard copy
form. Publicly available docket
materials are available either
electronically in www.regulations.gov or
in hard copy during normal business
hours at the Air Protection Division,
U.S. Environmental Protection Agency,
Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103.
Copies of the State submittal are
available at the Virginia Department of
Environmental Quality, 629 East Main
Street, Richmond, Virginia 23219.
FOR FURTHER INFORMATION CONTACT: Rose
Quinto, (215) 814–2182, or by e-mail at
quinto.rose@epa.gov.
SUPPLEMENTARY INFORMATION: On
October 25, 2005, the Virginia
Department of Environmental Quality
(VADEQ) submitted a formal revision to
its State Implementation Plan (SIP).
This SIP revision consists of (1)
amendments to 9 VAC 5 Chapter 20,
Part I, Administrative, 9 VAC 5–20–21,
Documents Incorporated by Reference;
and (2) new regulation 9 VAC 5 Chapter
40, Part II, Emission Standards, Article
50—Consumer Products, 9VAC 5–40–
7240 through 9 VAC 5–40–7360.
I. Background
The standards and requirements
contained in Virginia’s consumers
products rule are based on the Ozone
Transport Commission (OTC) model
rule. The OTC consumer products
model rule is based on the existing rules
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5035
developed by the California Air
Resources Board, which were analyzed
and modified by the OTC workgroup to
address VOC reduction needs in the
Ozone Transport Region (OTR). The
OTR consists of Delaware, Maine, New
Hampshire, Vermont, Massachusetts,
Connecticut, Rhode Island, New York,
New Jersey, Pennsylvania, Maryland,
the District of Columbia, and Virginia.
II. Summary of SIP Revision
Amendments to 9 VAC 5–20–21
incorporate by reference additional test
methods and procedures needed for 9
VAC 5 Chapter 40, Consumer Products:
(1) 40 CFR 59 Subpart C, National
Volatile Organic Compound Emission
Standards for Consumer Products; (2)
American Society for Testing and
Materials (ASTM) D86–01, Standard
Test Method for Distillation of
Petroleum Products at Atmospheric
Pressure, 2001; (3) ASTM D4359–90,
Standard Test Method for Determining
Whether a Material Is a Liquid or a
Solid, 2000; (4) ASTM E260–96,
Standard Practice for Packed Column
Gas Chromatography, 2001; (5) South
Coast Air Quality Management District
Rule 1174, Ignition Method Compliance
Certification Protocol, February 28,
1991; (6) California Air Resources Board
(CARB) Test Method 310 (including
Appendices A and B), Determination of
VOCs in Consumer Products and
Reactive Organic Compounds in Aerosol
Coating Products, July 18, 2001; (7)
California Code of Regulations, Title 17,
Division 3, Chapter 1, Subchapter 8.5,
Article 1, section 94503.5, Article 2,
sections 94509 and 94511, Article 4,
sections 94540–94555, 2003; and (8)
American Furniture Manufacturer
Association Joint Industry Fabrics
Standards Committee, Woven and Knit
Residential Upholstery Fabric Standards
and Guidelines, January 2001.
Virginia’s 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. This rule limits VOC
emissions from consumer products such
as adhesives, adhesive removers, aerosol
products (like cooking and dusting
sprays), air freshener, antiperspirants
and deodorants, facial toners and
astringents, waxes and polishes (for cars
and floors, etc.), tile cleaners, tar
removers, bug sprays, rug cleaners,
charcoal lighter fluid, disinfectants,
cosmetics and soaps. The compliance
date for this rule is July 1, 2005.
Rule 9 VAC 5 Chapter 40 applies to
any person who sells, supplies, offers
for sale, or manufactures consumer
products that contain VOC. Exempted
from the rule is any consumer product
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hsrobinson on PROD1PC70 with PROPOSALS
manufactured in the Northern Virginia
VOC emissions control area for
shipment and use outside of this area.
The rule does not apply to a
manufacturer or distributor who sells,
supplies, or offers for sale a consumer
product that does not comply with the
VOC standards as long as the
manufacturer or distributor can
demonstrate both that the consumer
product is intended for shipment and
use outside of the Northern Virginia
VOC emissions control area, and that
the manufacturer or distributor has
taken reasonable prudent precautions to
assure that the consumer product is not
distributed to the Northern Virginia
VOC emissions control area. The rule
sets specific VOC content limits in
percent VOCs by weight for consumer
products with a compliance date of July
1, 2005. Exemptions from the VOC
content limits are listed in the rule. The
rule also contains requirements for the
following consumer products: (1)
Products requiring dilution, (2) ozone
depleting compounds, (3) aerosol
adhesives, (4) antiperspirants or
deodorants, (5) charcoal lighter
materials, and (6) floor wax strippers.
Alternative control plans (ACP) are also
provided by allowing responsible
parties the option to voluntarily enter
into separate ACP agreements for the
consumer products mentioned above.
Criteria for innovative products
exemption and requirements for waiver
requests are listed in the rule. In
addition, the rule contains
administrative requirements for labeling
and reporting as well as test methods for
demonstrating compliance. The test
methods used to test coatings must be
the most current approved method at
the time testing is performed.
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
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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
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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. Proposed Action
EPA’s review of this material
indicates that the standards and
requirements contained in the Virginia’s
consumer products rule, 9 VAC 5
Chapter 40, are consistent with the OTC
model rule. EPA is proposing to approve
the Virginia SIP revision submitted on
October 25, 2005 for the new regulation,
9 VAC 5 Chapter 40, and the
amendments to 9 VAC 5–20–21 that
incorporates by reference test methods
and procedures needed for 9 VAC 5
Chapter 40. The implementation of this
rule will result in the reduction of VOC
emissions from consumer products in
the Northern Virginia VOC emissions
control area. EPA is soliciting public
comments on the issues discussed in
this document. These comments will be
considered before taking final action.
V. Statutory and Executive Order
Reviews
Under Executive Order 12866 (58 FR
51735, October 4, 1993), this proposed
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 proposes
to approve state law as meeting Federal
requirements and imposes no additional
requirements beyond those imposed by
state law. Accordingly, the
Administrator certifies that this
proposed 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 proposes to
approve 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
(Public Law 104–4). This proposed rule
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Federal Register / Vol. 71, No. 20 / Tuesday, January 31, 2006 / Proposed Rules
also does 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), nor will
it have substantial direct effects on the
States, on the relationship between the
National Government and the States, or
on the distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132 (64 FR 43255,
August 10, 1999), because it merely
proposes to approve 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 proposed rule also is not
subject to Executive Order 13045 (62 FR
19885, April 23, 1997), because it is not
economically significant.
In reviewing SIP submissions, EPA’s
role is to approve state choices,
provided that they meet the criteria of
the Clean Air Act. In this context, in the
absence of a prior existing requirement
for the State to use voluntary consensus
standards (VCS), EPA has no authority
to disapprove a SIP submission for
failure to use VCS. It would thus be
inconsistent with applicable law for
EPA, when it reviews a SIP submission,
to use VCS in place of a SIP submission
that otherwise satisfies the provisions of
the Clean Air Act. Thus, the
requirements of section 12(d) of the
National Technology Transfer and
Advancement Act of 1995 (15 U.S.C.
272 note) do not apply. As required by
section 3 of Executive Order 12988 (61
FR 4729, February 7, 1996), in issuing
this proposed rule, EPA has taken the
necessary steps to eliminate drafting
errors and ambiguity, minimize
potential litigation, and provide a clear
legal standard for affected conduct. EPA
has complied with Executive Order
12630 (53 FR 8859, March 15, 1988) by
examining the takings implications of
the rule in accordance with the
‘‘Attorney General’s Supplemental
Guidelines for the Evaluation of Risk
and Avoidance of Unanticipated
Takings’’ issued under the executive
order.
This proposed rule pertaining to the
emission standards for consumer
products in the Northern Virginia VOC
emissions control area, does not impose
an information collection burden under
the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
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List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Ozone, Reporting and
recordkeeping requirements, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: January 23, 2006.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. E6–1210 Filed 1–30–06; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
49 CFR Part 604
[Docket No. FTA–2005–22657]
RIN 2132–AA85
Charter Service
Federal Transit Administration
(FTA), DOT.
ACTION: Notice of intent to form a
negotiated rulemaking advisory
committee.
AGENCY:
SUMMARY: Pursuant to the direction
contained in the Joint Explanatory
Statement of the Committee of
Conference, for section 3023(d),
Condition on Charter Bus
Transportation Service of the Safe,
Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for
Users (SAFETEA–LU) of 2005, FTA is
establishing a committee to develop,
through negotiated rulemaking
procedures, recommendations for
improving the regulation regarding
prohibition of FTA grant recipients from
providing charter bus service. The
committee will consist of persons who
represent the interests affected by the
proposed rule, i.e., charter bus
companies, public transportation
operators, and other interested parties.
The purpose of this document is to
invite interested parties to submit
comments on the issues to be discussed
and the interests and organizations to be
considered for representation on the
committee.
You should submit your
comments or applications for
membership or nominations for
membership on the negotiated
rulemaking committee early enough to
ensure that the Department of
Transportation’s Docket Management
System (DMS) receives them not later
than March 2, 2006. Late-filed
comments will be considered to the
extent practicable.
DATES:
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5037
You should mention the
docket number of FTA–2005–22657 in
your comments or application/
nomination for membership and submit
them in writing to: Docket Management
System (DMS), Room PL–401, 400
Seventh Street, SW., Washington, DC
20590. Commenters may also submit
their comments electronically.
Instructions for electronic submission
may be found at the following Web
address: https://dms.dot.gov/submit/.
You may call the Docket at 202–366–
9324, and visit it from 10 a.m. to 5 p.m.,
Monday through Friday. You may read
the comments received by DMS at
https://dms.dot.gov.
Interested persons may view docketed
materials on the internet at any time. To
read docket materials on the internet,
take the following steps:
1. Go to the DMS Web page of the
Department of Transportation (https://
dms.dot.gov/).
2. On that page, click on ‘‘simple
search.’’
3. On the next page (https://
dms.dot.gov/search/), type in the FTA–
2005–22657, which is shown on the first
page of this document.
4. On the next page, which contains
docket summary information for the
docket you selected, click on the desired
comments. You may download the
comments and the comments are word
searchable.
Please note that even after the
comment closing date, we will continue
to file relevant information in the
Docket as it becomes available. Further,
some people may submit late comments.
Accordingly, we recommend that you
periodically check the Docket for new
material.
FOR FURTHER INFORMATION CONTACT:
Elizabeth S. Martineau, AttorneyAdvisor, Office of the Chief Counsel,
Federal Transit Administration, 202–
366–1936
(elizabeth.martineau@fta.dot.gov). Her
mailing address at the Federal Transit
Administration is 400 Seventh Street,
SW., Room 9316, Washington, DC
20590.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
I. Background
Applicants for FTA assistance must
formally agree that they will not provide
charter service using equipment or
facilities funded by FTA, unless there
are no private charter operators willing
and able to provide the charter service
or another exception applies. This
requirement is in law under 49 U.S.C.
5323(d) and regulations implementing
the requirement are found in 49 CFR
604. The purpose is to ensure that
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Agencies
[Federal Register Volume 71, Number 20 (Tuesday, January 31, 2006)]
[Proposed Rules]
[Pages 5035-5037]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-1210]
[[Page 5035]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2005-VA-0017; FRL-8026-7]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Emission Standards for Consumer Products in the Northern
Virginia Volatile Organic Compound Emissions Control Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve 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. This action is being taken under the Clean Air Act (CAA
or the Act).
DATES: Written comments must be received on or before March 2, 2006.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2005-VA-0017 by one of the following methods:
A. www.regulations.gov. Follow the on-line instructions for
submitting comments.
B. E-mail: morris.makeba@epa.gov.
C. Mail: EPA-R03-OAR-2005-VA-0017, Makeba Morris, Chief, Air
Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
D. Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2005-VA-0017. EPA's policy is that all comments received will be
included in the public docket without change, and may be made available
online at www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through www.regulations.gov
or e-mail. The www.regulations.gov Web site is an ``anonymous access''
system, which means EPA will not know your identity or contact
information unless you provide it in the body of your comment. If you
send an e-mail comment directly to EPA without going through
www.regulations.gov, your e-mail address will be automatically captured
and included as part of the comment that is placed in the public docket
and made available on the Internet. If you submit an electronic
comment, EPA recommends that you include your name and other contact
information in the body of your comment and with any disk or CD-ROM you
submit. If EPA cannot read your comment due to technical difficulties
and cannot contact you for clarification, EPA may not be able to
consider your comment. Electronic files should avoid the use of special
characters, any form of encryption, and be free of any defects or
viruses.
Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in www.regulations.gov or
in hard copy during normal business hours at the Air Protection
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch
Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal
are available at the Virginia Department of Environmental Quality, 629
East Main Street, Richmond, Virginia 23219.
FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182, or by e-
mail at quinto.rose@epa.gov.
SUPPLEMENTARY INFORMATION: On October 25, 2005, the Virginia Department
of Environmental Quality (VADEQ) submitted a formal revision to its
State Implementation Plan (SIP). This SIP revision consists of (1)
amendments to 9 VAC 5 Chapter 20, Part I, Administrative, 9 VAC 5-20-
21, Documents Incorporated by Reference; and (2) new regulation 9 VAC 5
Chapter 40, Part II, Emission Standards, Article 50--Consumer Products,
9VAC 5-40-7240 through 9 VAC 5-40-7360.
I. Background
The standards and requirements contained in Virginia's consumers
products rule are based on the Ozone Transport Commission (OTC) model
rule. The OTC consumer products model rule is based on the existing
rules developed by the California Air Resources Board, which were
analyzed and modified by the OTC workgroup to address VOC reduction
needs in the Ozone Transport Region (OTR). The OTR consists of
Delaware, Maine, New Hampshire, Vermont, Massachusetts, Connecticut,
Rhode Island, New York, New Jersey, Pennsylvania, Maryland, the
District of Columbia, and Virginia.
II. Summary of SIP Revision
Amendments to 9 VAC 5-20-21 incorporate by reference additional
test methods and procedures needed for 9 VAC 5 Chapter 40, Consumer
Products: (1) 40 CFR 59 Subpart C, National Volatile Organic Compound
Emission Standards for Consumer Products; (2) American Society for
Testing and Materials (ASTM) D86-01, Standard Test Method for
Distillation of Petroleum Products at Atmospheric Pressure, 2001; (3)
ASTM D4359-90, Standard Test Method for Determining Whether a Material
Is a Liquid or a Solid, 2000; (4) ASTM E260-96, Standard Practice for
Packed Column Gas Chromatography, 2001; (5) South Coast Air Quality
Management District Rule 1174, Ignition Method Compliance Certification
Protocol, February 28, 1991; (6) California Air Resources Board (CARB)
Test Method 310 (including Appendices A and B), Determination of VOCs
in Consumer Products and Reactive Organic Compounds in Aerosol Coating
Products, July 18, 2001; (7) California Code of Regulations, Title 17,
Division 3, Chapter 1, Subchapter 8.5, Article 1, section 94503.5,
Article 2, sections 94509 and 94511, Article 4, sections 94540-94555,
2003; and (8) American Furniture Manufacturer Association Joint
Industry Fabrics Standards Committee, Woven and Knit Residential
Upholstery Fabric Standards and Guidelines, January 2001.
Virginia's 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. This rule limits VOC emissions from
consumer products such as adhesives, adhesive removers, aerosol
products (like cooking and dusting sprays), air freshener,
antiperspirants and deodorants, facial toners and astringents, waxes
and polishes (for cars and floors, etc.), tile cleaners, tar removers,
bug sprays, rug cleaners, charcoal lighter fluid, disinfectants,
cosmetics and soaps. The compliance date for this rule is July 1, 2005.
Rule 9 VAC 5 Chapter 40 applies to any person who sells, supplies,
offers for sale, or manufactures consumer products that contain VOC.
Exempted from the rule is any consumer product
[[Page 5036]]
manufactured in the Northern Virginia VOC emissions control area for
shipment and use outside of this area. The rule does not apply to a
manufacturer or distributor who sells, supplies, or offers for sale a
consumer product that does not comply with the VOC standards as long as
the manufacturer or distributor can demonstrate both that the consumer
product is intended for shipment and use outside of the Northern
Virginia VOC emissions control area, and that the manufacturer or
distributor has taken reasonable prudent precautions to assure that the
consumer product is not distributed to the Northern Virginia VOC
emissions control area. The rule sets specific VOC content limits in
percent VOCs by weight for consumer products with a compliance date of
July 1, 2005. Exemptions from the VOC content limits are listed in the
rule. The rule also contains requirements for the following consumer
products: (1) Products requiring dilution, (2) ozone depleting
compounds, (3) aerosol adhesives, (4) antiperspirants or deodorants,
(5) charcoal lighter materials, and (6) floor wax strippers.
Alternative control plans (ACP) are also provided by allowing
responsible parties the option to voluntarily enter into separate ACP
agreements for the consumer products mentioned above. Criteria for
innovative products exemption and requirements for waiver requests are
listed in the rule. In addition, the rule contains administrative
requirements for labeling and reporting as well as test methods for
demonstrating compliance. The test methods used to test coatings must
be the most current approved method at the time testing is performed.
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 Sec. 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. Proposed Action
EPA's review of this material indicates that the standards and
requirements contained in the Virginia's consumer products rule, 9 VAC
5 Chapter 40, are consistent with the OTC model rule. EPA is proposing
to approve the Virginia SIP revision submitted on October 25, 2005 for
the new regulation, 9 VAC 5 Chapter 40, and the amendments to 9 VAC 5-
20-21 that incorporates by reference test methods and procedures needed
for 9 VAC 5 Chapter 40. The implementation of this rule will result in
the reduction of VOC emissions from consumer products in the Northern
Virginia VOC emissions control area. EPA is soliciting public comments
on the issues discussed in this document. These comments will be
considered before taking final action.
V. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed 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 proposes to approve state law as meeting Federal
requirements and imposes no additional requirements beyond those
imposed by state law. Accordingly, the Administrator certifies that
this proposed 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 proposes to approve 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 (Public Law 104-4). This proposed rule
[[Page 5037]]
also does 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), nor will it have
substantial direct effects on the States, on the relationship between
the National Government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132 (64 FR 43255, August 10, 1999),
because it merely proposes to approve 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 proposed rule also is not subject to Executive Order 13045
(62 FR 19885, April 23, 1997), because it is not economically
significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing
this proposed rule, EPA has taken the necessary steps to eliminate
drafting errors and ambiguity, minimize potential litigation, and
provide a clear legal standard for affected conduct. EPA has complied
with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining
the takings implications of the rule in accordance with the ``Attorney
General's Supplemental Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings'' issued under the executive order.
This proposed rule pertaining to the emission standards for
consumer products in the Northern Virginia VOC emissions control area,
does not impose an information collection burden under the provisions
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Ozone, Reporting
and recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: January 23, 2006.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. E6-1210 Filed 1-30-06; 8:45 am]
BILLING CODE 6560-50-P