Approval and Promulgation of Air Quality Implementation Plans; Virginia; Amendments to the Open Burning Regulation, 11661-11664 [E9-5822]
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Federal Register / Vol. 74, No. 52 / Thursday, March 19, 2009 / Rules and Regulations
Name of non-regulatory SIP
revision
Applicable geographic area
1999–2005 Rate-of-Progress
Plan SIP Revision and the
Transportation Control
Measures (TCMs) in Appendix J.
Washington DC 1-hour
ozone nonattainment area.
VMT Offset SIP Revision .......
Contingency Measure Plan ...
1-hour Ozone Modeled Demonstration of Attainment.
Attainment Demonstration
and Early Action Plan for
the Washington County
Ozone Early Action Compact Area.
1-hour Ozone Attainment
Plan.
8–Hour Ozone Maintenance
Plan for the Kent and
Queen Anne’s Area.
EPA approval date
Additional
explanation
9/2/03, 2/24/04
5/16/05, 70 FR 25688 ...........
Only the TCMs in Appendix J
of the 2/24/2004 revision
2002 motor vehicle emissions budgets (MVEBs) of
125.2 tons per day (tpy) for
VOC and 290.3 tpy of
NOX, and, 2005 MVEBs of
97.4 tpy for VOC and
234.7 tpy of NOX.
Washington DC 1-hour
ozone nonattainment area.
Washington, DC Area ...........
Washington DC 1-hour
ozone nonattainment area.
Washington County ...............
9/2/03, 2/24/04
5/16/05, 70 FR 25688 ...........
9/2/03, 2/24/04
9/2/03, 2/24/04
5/16/05, 70 FR 25688 ...........
5/16/05, 70 FR 25688 ...........
12/20/04, 2/28/
05.
8/17/05, 70 FR 48283 ...........
Washington DC 1-hour
ozone nonattainment area.
Kent and Queen Anne’s
Counties.
9/2/2003, 2/24/
2004.
05/2/06, 05/19/
06.
11/16/05, 70 FR 69440 .........
[FR Doc. E9–5827 Filed 3–18–09; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2007–0200; FRL–8773–1]
Approval and Promulgation of Air
Quality Implementation Plans; Virginia;
Amendments to the Open Burning
Regulation
mstockstill on PROD1PC66 with RULES
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: EPA is approving a State
Implementation Plan (SIP) revision
submitted by the Commonwealth of
Virginia. This SIP revision pertains to
the amendments of Virginia’s open
burning regulation. EPA is approving
this SIP revision in accordance with the
Clean Air Act (CAA).
DATES: Effective Date: This final rule is
effective on April 20, 2009.
ADDRESSES: EPA has established a
docket for this action under Docket ID
Number EPA–R03–OAR–2007–0200. All
documents in the docket are listed in
the https://www.regulations.gov Web
site. Although listed in the electronic
docket, some information is not publicly
available, i.e., confidential business
information (CBI) or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
VerDate Nov<24>2008
18:17 Mar 18, 2009
Jkt 217001
State submittal
date
11661
12/22/06, 71 FR 76920 .........
available only in hard copy form.
Publicly available docket materials are
available either electronically through
https://www.regulations.gov or in hard
copy for public inspection during
normal business hours at the Air
Protection Division, U.S. Environmental
Protection Agency, Region III, 1650
Arch Street, Philadelphia, Pennsylvania
19103. Copies of the State submittal are
available at Virginia Department of
Environmental Quality, 629 East Main
Street, Richmond, Virginia 23219.
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, 2007 (72 FR 31493), EPA
published a notice of proposed
rulemaking (NPR) for the
Commonwealth of Virginia. The NPR
proposed approval of the amendments
to Virginia’s open burning regulation (9
VAC 5, Chapter 40, Part II, Article 40,
Sections 5–40–5600 through 5–40–
5630). The formal SIP revision was
submitted by the Virginia Department of
Environmental Quality (VADEQ) on
February 5, 2007. The provisions of
Virginia’s open burning regulation and
the rationale for EPA’s proposed action
are explained in the NPR and will not
be restated here. On July 9, 2007, EPA
received comments from VADEQ on the
June 7, 2007 NPR. The comments state
that they are not to be considered
adverse to EPA’s proposed action;
rather, VADEQ requests that EPA revise
the preamble to the rule where the
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preamble is arguably inconsistent with
Virginia’s submittal. A summary of
those comments and EPA’s responses
are provided in Section II of this
document.
II. Summary of Public Comments and
EPA Responses
Comment: The commenter requests to
correct the following under the
‘‘Summary of SIP Revision,’’ the list of
volatile organic compound (VOC)
emission control areas:
1. Western Virginia Emissions Control
Area: Add ‘‘Roanoke City;’’ change
‘‘Salem County’’ to ‘‘Salem City;’’ and
change ‘‘Winchester County’’ to
‘‘Winchester City.’’
2. Hampton Roads Emissions Control
Area: Add ‘‘Gloucester County’’ and
‘‘Isle of Wight County’’ and change
‘‘Suffolk County’’ to Suffolk City.’’
3. Richmond Emissions Control Area:
Add ‘‘Prince George County’’ and
‘‘Petersburg City.’’
Response: EPA acknowledges that the
June 7, 2007 proposal inadvertently
omitted the above-referenced geographic
areas, which were included in Virginia’s
submittal.
Comment: The commenter requests
that the seasonal restrictions in 9 VAC
5–40–5630(A)(8) and 9 VAC 5–40–
5630(A)(10) as applying in the County
of Gloucester and the County of Isle of
Wight not become part of Virginia SIP
until 2009.
Response: The effective date of this
approval is 2009; therefore this
comment is moot.
Comment: The commenter requests to
remove the terms ‘‘landfill,’’ ‘‘local
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landfill’’ and ‘‘salvage operation’’ from
the list of definitions affected by this
SIP approval, since no changes were
made to these definitions. The
commenter requests to add the term
‘‘junkyard’’ in the list of definitions,
since a change was made to this
definition.
Response: EPA agrees that Virginia’s
submittal did not change the definitions
of the terms ‘‘landfill,’’ ‘‘local landfill’’
and ‘‘salvage operation,’’ which were
inadvertently included in the June 7,
2007 notice as having been changed.
EPA also agrees that Virginia added the
term ‘‘junkyard’’ although this term was
inadvertently omitted from the list of
changes in the SIP Revision Summary of
the notice.
Comment: The commenter requests to
replace the following statement
contained in the preamble: ‘‘This SIP
revision provides for the control of open
burning and use of special incineration
devices for destruction of rubber tires,
asphaltic materials, crankcase oil,
impregnated wood or other rubber or
petroleum based materials except when
conducting bona fide fire fighting
instruction at fire fighting training
schools having permanent facilities.
This SIP revision also provides for the
control of open burning and use of
special incineration device for the
destruction of hazardous waste or
containers for such materials. In
addition, this SIP revision provides for
the control of open burning and use of
special incineration device for the
purpose of salvage operation or for the
destruction of commercial/industrial
waste.’’
The commenter suggests replacing
that statement with: ‘‘The destruction of
rubber tires, asphaltic materials,
crankcase oil, impregnated wood or
other rubber or petroleum based
materials is prohibited by open burning
or the use of special incineration
devices except when conducting bona
fide fire fighting instruction at
firefighting training schools having
permanent facilities. Open burning or
the use of special incinerator devices is
also prohibited for the destruction of
hazardous waste or containers for such
materials as well as for salvage
operations or for the destruction of
commercial/industrial waste.’’
Response: EPA agrees that VADEQ’s
suggested replacement statement is an
accurate synopsis of the rule, and
should replace EPA’s statement from the
rule proposal.
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18:17 Mar 18, 2009
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III. General Information Pertaining to
SIP Submittals From the
Commonwealth of Virginia
In 1995, Virginia adopted legislation
that provides, subject to certain
conditions, for an environmental
assessment (audit) ‘‘privilege’’ for
voluntary compliance evaluations
performed by a regulated entity. The
legislation further addresses the relative
burden of proof for parties either
asserting the privilege or seeking
disclosure of documents for which the
privilege is claimed. Virginia’s
legislation also provides, subject to
certain conditions, for a penalty waiver
for violations of environmental laws
when a regulated entity discovers such
violations pursuant to a voluntary
compliance evaluation and voluntarily
discloses such violations to the
Commonwealth and takes prompt and
appropriate measures to remedy the
violations. Virginia’s Voluntary
Environmental Assessment Privilege
Law, Va. Code Sec. 10.1–1198, provides
a privilege that protects from disclosure
documents and information about the
content of those documents that are the
product of a voluntary environmental
assessment. The Privilege Law does not
extend to documents or information (1)
That are generated or developed before
the commencement of a voluntary
environmental assessment; (2) that are
prepared independently of the
assessment process; (3) that demonstrate
a clear, imminent and substantial
danger to the public health or
environment; or (4) that are required by
law.
On January 12, 1998, the
Commonwealth of Virginia Office of the
Attorney General provided a legal
opinion that states that the Privilege
law, Va. Code Sec. 10.1–1198, precludes
granting a privilege to documents and
information ‘‘required by law,’’
including documents and information
‘‘required by Federal law to maintain
program delegation, authorization or
approval,’’ since Virginia must ‘‘enforce
Federally authorized environmental
programs in a manner that is no less
stringent than their Federal
counterparts. * * *’’ The opinion
concludes that ‘‘[r]egarding § 10.1–1198,
therefore, documents or other
information needed for civil or criminal
enforcement under one of these
programs could not be privileged
because such documents and
information are essential to pursuing
enforcement in a manner required by
Federal law to maintain program
delegation, authorization or approval.’’
Virginia’s Immunity law, Va. Code
Sec. 10.1–1199, provides that ‘‘[t]o the
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extent consistent with requirements
imposed by Federal law,’’ any person
making a voluntary disclosure of
information to a state agency regarding
a violation of an environmental statute,
regulation, permit, or administrative
order is granted immunity from
administrative or civil penalty. The
Attorney General’s January 12, 1998
opinion states that the quoted language
renders this statute inapplicable to
enforcement of any federally authorized
programs, since ‘‘no immunity could be
afforded from administrative, civil, or
criminal penalties because granting
such immunity would not be consistent
with Federal law, which is one of the
criteria for immunity.’’
Therefore, EPA has determined that
Virginia’s Privilege and Immunity
statutes will not preclude the
Commonwealth from enforcing its
program consistent with the Federal
requirements. In any event, because
EPA has also determined that a state
audit privilege and immunity law can
affect only state enforcement and cannot
have any impact on Federal
enforcement authorities, EPA may at
any time invoke its authority under the
CAA, including, for example, sections
113, 167, 205, 211 or 213, to enforce the
requirements or prohibitions of the state
plan, independently of any state
enforcement effort. In addition, citizen
enforcement under section 304 of the
CAA is likewise unaffected by this, or
any, state audit privilege or immunity
law.
IV. Final Action
EPA is approving the amendments to
the open burning regulation (9 VAC 5,
Chapter 40, Part II, Article 40, Sections
5–40–5600 through 5–40–5630) as a
revision to the Virginia SIP submitted
on February 5, 2007.
V. Statutory and Executive Order
Reviews
A. General Requirements
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely approves state law as meeting
Federal requirements and does not
impose additional requirements beyond
those imposed by state law. For that
reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
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Executive Order 12866 (58 FR 51735,
October 4, 1993);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the state, and EPA notes that
it will not impose substantial direct
costs on tribal governments or preempt
tribal law.
B. Submission to Congress and the
Comptroller General
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
affect the finality of this action for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action.
This action, approving the
amendments of Virginia’s open burning
regulation, may not be challenged later
in proceedings to enforce its
requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone,
Reporting and recordkeeping
requirements, Volatile organic
compounds.
January 22, 2009.
William T. Wisniewski,
Acting Regional Administrator, Region III.
■
40 CFR Part 52 is amended as follows:
PART 52—[AMENDED]
1. The authority citation for 40 CFR
part 52 continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart VV—Virginia
2. In § 52.2420, the table in paragraph
(c) is amended by revising the entries
for 9 VAC 5, Chapter 40, Part II, Article
40, Sections 5–40–5600 through 5–40–
5630 to read as follows:
■
C. Petitions for Judicial Review
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by May 18, 2009. Filing a
petition for reconsideration by the
Administrator of this final rule does not
§ 52.2420
*
Identification of plan.
*
*
(c) * * *
*
*
EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES
State citation
(9 VAC 5)
*
State effective
date
Title/subject
*
*
*
Chapter 40
*
*
*
*
*
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5–40–5610 ...................
Definitions ....................
10/18/06
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*
*
*
Open Burning (Rule 4–40)
10/18/06
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*
*
*
Applicability ..................
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*
Emission Standards
5–40–5600 ...................
18:17 Mar 18, 2009
*
*
*
Article 40
VerDate Nov<24>2008
*
Existing Stationary Sources
*
Part II
Explanation
[former SIP citation]
EPA approval date
March 19, 2009 [Insert
page number where
the document begins].
March 19, 2009 [Insert
page number where
the document begins].
Fmt 4700
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Provisions of Article 40 expanded to new localities in the emissions control areas.
Terms added: ‘‘Air curtain incinerator,’’ ‘‘Clean
lumber,’’ ‘‘Wood waste,’’ and ‘‘Yard waste.’’
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Federal Register / Vol. 74, No. 52 / Thursday, March 19, 2009 / Rules and Regulations
EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES—Continued
State citation
(9 VAC 5)
State effective
date
Title/subject
Explanation
[former SIP citation]
EPA approval date
Terms revised: ‘‘Clean burning waste,’’ ‘‘Clean
wood,’’ ‘‘Commercial waste,’’ ‘‘Construction
waste,’’ ‘‘Debris waste,’’ ‘‘Demolition waste,’’
‘‘Garbage,’’ ‘‘Hazardous waste,’’ ‘‘Household
waste,’’ ‘‘Industrial waste,’’ ‘‘Junkyard,’’
‘‘Open burning,’’ ‘‘Open pit incinerator,’’
‘‘Refuse,’’ ‘‘Sanitary landfill,’’ and ‘‘Special incineration device.’’
5–40–5620 ...................
Open burning prohibitions.
10/18/06
5–40–5630 ...................
Permissible open burning.
10/18/06
*
*
*
*
*
*
*
*
[FR Doc. E9–5822 Filed 3–18–09; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[DC103–2051; FRL–8775–3]
Approval and Promulgation of Air
Quality Implementation Plans; District
of Columbia; Update to Materials
Incorporated by Reference
mstockstill on PROD1PC66 with RULES
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule; Notice of
administrative change.
18:17 Mar 18, 2009
Jkt 217001
*
*
Philadelphia, Pennsylvania 19103; the
Air and Radiation Docket and
Information Center, U.S. Environmental
Protection Agency, 1301 Constitution
Avenue, NW., Room B108, Washington,
DC 20460; or the National Archives and
Records Administration (NARA). For
information on the availability of this
material at NARA, call 202–741–6030,
or go to: https://www.archives.gov/
federal_register/code_of_
federal_regulations/ibr_locations.html.
FOR FURTHER INFORMATION CONTACT:
Harold A. Frankford, (215) 814–2108 or
by e-mail at frankford.harold@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
SUMMARY: EPA is updating the materials
submitted by the District of Columbia
that are incorporated by reference (IBR)
into the State implementation plan
(SIP). The regulations affected by this
update have been previously submitted
by the District of Columbia Department
of the Environment and approved by
EPA. This update affects the SIP
materials that are available for public
inspection at the National Archives and
Records Administration (NARA), the
Air and Radiation Docket and
Information Center located at EPA
Headquarters in Washington, DC, and
the EPA Regional Office.
DATES: Effective Date: This action is
effective March 19, 2009.
ADDRESSES: SIP materials which are
incorporated by reference into 40 CFR
part 52 are available for inspection at
the following locations: Air Protection
Division, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street,
VerDate Nov<24>2008
March 19, 2009 [Insert
page number where
the document begins].
March 19, 2009 [Insert
page number where
the document begins].
The SIP is a living document which
the state can revise as necessary to
address the unique air pollution
problems in the State. Therefore, EPA
from time to time must take action on
SIP revisions containing new and/or
revised regulations as being part of the
SIP. On May 22, 1997 (62 FR 27968),
EPA revised the procedures for
incorporating by reference Federallyapproved SIPs, as a result of
consultations between EPA and Office
of the Federal Register (OFR). The
description of the revised SIP
document, IBR procedures and
‘‘Identification of plan’’ format are
discussed in further detail in the May
22, 1997 Federal Register document. On
December 7, 1998, (63 FR 67407) EPA
published a document in the Federal
Register beginning the new IBR
procedure for the District of Columbia.
On August 6, 2004 (69 FR 47773) and
September 6, 2005 (70 FR 52919), EPA
published updates to the IBR material
for the District of Columbia.
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*
*
II. EPA Action
In this action, EPA is doing the
following:
1. Announcing the update to the IBR
material as of December 1, 2008.
2. Making corrections to text in the
‘‘Title/subject’’ column to the following
entries listed in the § 52.470(c) table:
Section 702; Section 703.2, 703.3;
Section 703.1, 703.4 through 703.7;
Section 705.1 through 705.3, and
Section 705.4 through 14.
EPA has determined that today’s rule
falls under the ‘‘good cause’’ exemption
in section 553(b)(3)(B) of the
Administrative Procedures Act (APA)
which, upon finding ‘‘good cause,’’
authorizes agencies to dispense with
public participation and section
553(d)(3) which allows an agency to
make a rule effective immediately
(thereby avoiding the 30-day delayed
effective date otherwise provided for in
the APA). Today’s rule simply codifies
provisions which are already in effect as
a matter of law in Federal and approved
State programs. Under section 553 of the
APA, an agency may find good cause
where procedures are ‘‘impractical,
unnecessary, or contrary to the public
interest.’’ Public comment is
‘‘unnecessary’’ and ‘‘contrary to the
public interest’’ since the codification
only reflects existing law. Immediate
notice in the CFR benefits the public by
removing outdated citations and
incorrect chart entries.
III. Statutory and Executive Order
Reviews
A. General Requirements
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Act and applicable
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]]>Agencies
[Federal Register Volume 74, Number 52 (Thursday, March 19, 2009)]
[Rules and Regulations]
[Pages 11661-11664]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-5822]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2007-0200; FRL-8773-1]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Amendments to the Open Burning Regulation
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is approving a State Implementation Plan (SIP) revision
submitted by the Commonwealth of Virginia. This SIP revision pertains
to the amendments of Virginia's open burning regulation. EPA is
approving this SIP revision in accordance with the Clean Air Act (CAA).
DATES: Effective Date: This final rule is effective on April 20, 2009.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2007-0200. All documents in the docket are listed in
the https://www.regulations.gov Web site. Although listed in the
electronic docket, some information is not publicly available, i.e.,
confidential business information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically through https://
www.regulations.gov or in hard copy for public inspection during normal
business hours at the Air Protection Division, U.S. Environmental
Protection Agency, Region III, 1650 Arch Street, Philadelphia,
Pennsylvania 19103. Copies of the State submittal are available at
Virginia Department of Environmental Quality, 629 East Main Street,
Richmond, Virginia 23219.
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, 2007 (72 FR 31493), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed
approval of the amendments to Virginia's open burning regulation (9 VAC
5, Chapter 40, Part II, Article 40, Sections 5-40-5600 through 5-40-
5630). The formal SIP revision was submitted by the Virginia Department
of Environmental Quality (VADEQ) on February 5, 2007. The provisions of
Virginia's open burning regulation and the rationale for EPA's proposed
action are explained in the NPR and will not be restated here. On July
9, 2007, EPA received comments from VADEQ on the June 7, 2007 NPR. The
comments state that they are not to be considered adverse to EPA's
proposed action; rather, VADEQ requests that EPA revise the preamble to
the rule where the preamble is arguably inconsistent with Virginia's
submittal. A summary of those comments and EPA's responses are provided
in Section II of this document.
II. Summary of Public Comments and EPA Responses
Comment: The commenter requests to correct the following under the
``Summary of SIP Revision,'' the list of volatile organic compound
(VOC) emission control areas:
1. Western Virginia Emissions Control Area: Add ``Roanoke City;''
change ``Salem County'' to ``Salem City;'' and change ``Winchester
County'' to ``Winchester City.''
2. Hampton Roads Emissions Control Area: Add ``Gloucester County''
and ``Isle of Wight County'' and change ``Suffolk County'' to Suffolk
City.''
3. Richmond Emissions Control Area: Add ``Prince George County''
and ``Petersburg City.''
Response: EPA acknowledges that the June 7, 2007 proposal
inadvertently omitted the above-referenced geographic areas, which were
included in Virginia's submittal.
Comment: The commenter requests that the seasonal restrictions in 9
VAC 5-40-5630(A)(8) and 9 VAC 5-40-5630(A)(10) as applying in the
County of Gloucester and the County of Isle of Wight not become part of
Virginia SIP until 2009.
Response: The effective date of this approval is 2009; therefore
this comment is moot.
Comment: The commenter requests to remove the terms ``landfill,''
``local
[[Page 11662]]
landfill'' and ``salvage operation'' from the list of definitions
affected by this SIP approval, since no changes were made to these
definitions. The commenter requests to add the term ``junkyard'' in the
list of definitions, since a change was made to this definition.
Response: EPA agrees that Virginia's submittal did not change the
definitions of the terms ``landfill,'' ``local landfill'' and ``salvage
operation,'' which were inadvertently included in the June 7, 2007
notice as having been changed. EPA also agrees that Virginia added the
term ``junkyard'' although this term was inadvertently omitted from the
list of changes in the SIP Revision Summary of the notice.
Comment: The commenter requests to replace the following statement
contained in the preamble: ``This SIP revision provides for the control
of open burning and use of special incineration devices for destruction
of rubber tires, asphaltic materials, crankcase oil, impregnated wood
or other rubber or petroleum based materials except when conducting
bona fide fire fighting instruction at fire fighting training schools
having permanent facilities. This SIP revision also provides for the
control of open burning and use of special incineration device for the
destruction of hazardous waste or containers for such materials. In
addition, this SIP revision provides for the control of open burning
and use of special incineration device for the purpose of salvage
operation or for the destruction of commercial/industrial waste.''
The commenter suggests replacing that statement with: ``The
destruction of rubber tires, asphaltic materials, crankcase oil,
impregnated wood or other rubber or petroleum based materials is
prohibited by open burning or the use of special incineration devices
except when conducting bona fide fire fighting instruction at
firefighting training schools having permanent facilities. Open burning
or the use of special incinerator devices is also prohibited for the
destruction of hazardous waste or containers for such materials as well
as for salvage operations or for the destruction of commercial/
industrial waste.''
Response: EPA agrees that VADEQ's suggested replacement statement
is an accurate synopsis of the rule, and should replace EPA's statement
from the rule proposal.
III. General Information Pertaining to SIP Submittals From the
Commonwealth of Virginia
In 1995, Virginia adopted legislation that provides, subject to
certain conditions, for an environmental assessment (audit)
``privilege'' for voluntary compliance evaluations performed by a
regulated entity. The legislation further addresses the relative burden
of proof for parties either asserting the privilege or seeking
disclosure of documents for which the privilege is claimed. Virginia's
legislation also provides, subject to certain conditions, for a penalty
waiver for violations of environmental laws when a regulated entity
discovers such violations pursuant to a voluntary compliance evaluation
and voluntarily discloses such violations to the Commonwealth and takes
prompt and appropriate measures to remedy the violations. Virginia's
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and
information about the content of those documents that are the product
of a voluntary environmental assessment. The Privilege Law does not
extend to documents or information (1) That are generated or developed
before the commencement of a voluntary environmental assessment; (2)
that are prepared independently of the assessment process; (3) that
demonstrate a clear, imminent and substantial danger to the public
health or environment; or (4) that are required by law.
On January 12, 1998, the Commonwealth of Virginia Office of the
Attorney General provided a legal opinion that states that the
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege
to documents and information ``required by law,'' including documents
and information ``required by Federal law to maintain program
delegation, authorization or approval,'' since Virginia must ``enforce
Federally authorized environmental programs in a manner that is no less
stringent than their Federal counterparts. * * *'' The opinion
concludes that ``[r]egarding 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 CAA, including, for example, sections 113, 167, 205, 211 or 213, to
enforce the requirements or prohibitions of the state plan,
independently of any state enforcement effort. In addition, citizen
enforcement under section 304 of the CAA is likewise unaffected by
this, or any, state audit privilege or immunity law.
IV. Final Action
EPA is approving the amendments to the open burning regulation (9
VAC 5, Chapter 40, Part II, Article 40, Sections 5-40-5600 through 5-
40-5630) as a revision to the Virginia SIP submitted on February 5,
2007.
V. Statutory and Executive Order Reviews
A. General Requirements
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under
[[Page 11663]]
Executive Order 12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the state,
and EPA notes that it will not impose substantial direct costs on
tribal governments or preempt tribal law.
B. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
C. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by May 18, 2009. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action.
This action, approving the amendments of Virginia's open burning
regulation, may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
January 22, 2009.
William T. Wisniewski,
Acting Regional Administrator, Region III.
0
40 CFR Part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for 40 CFR 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 revising
the entries for 9 VAC 5, Chapter 40, Part II, Article 40, Sections 5-
40-5600 through 5-40-5630 to read as follows:
Sec. 52.2420 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Virginia Regulations and Statutes
----------------------------------------------------------------------------------------------------------------
State effective Explanation [former
State citation (9 VAC 5) Title/subject date EPA approval date SIP citation]
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Chapter 40 Existing Stationary Sources
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Part II Emission Standards
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Article 40 Open Burning (Rule 4-40)
----------------------------------------------------------------------------------------------------------------
5-40-5600...................... Applicability..... 10/18/06 March 19, 2009 Provisions of Article
[Insert page 40 expanded to new
number where the localities in the
document begins]. emissions control
areas.
5-40-5610...................... Definitions....... 10/18/06 March 19, 2009 Terms added: ``Air
[Insert page curtain
number where the incinerator,''
document begins]. ``Clean lumber,''
``Wood waste,'' and
``Yard waste.''
[[Page 11664]]
................ Terms revised: ``Clean
burning waste,''
``Clean wood,''
``Commercial waste,''
``Construction
waste,'' ``Debris
waste,'' ``Demolition
waste,'' ``Garbage,''
``Hazardous waste,''
``Household waste,''
``Industrial waste,''
``Junkyard,'' ``Open
burning,'' ``Open pit
incinerator,''
``Refuse,''
``Sanitary
landfill,'' and
``Special
incineration
device.''
5-40-5620...................... Open burning 10/18/06 March 19, 2009
prohibitions. [Insert page
number where the
document begins].
5-40-5630...................... Permissible open 10/18/06 March 19, 2009
burning. [Insert page
number where the
document begins].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. E9-5822 Filed 3-18-09; 8:45 am]
BILLING CODE 6560-50-P
