Approval and Promulgation of Air Quality Implementation Plans; Virginia; Northern Virginia Reasonably Available Control Technology Under the 8-Hour Ozone National Ambient Air Quality Standard, 28444-28447 [E9-14018]
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Federal Register / Vol. 74, No. 114 / Tuesday, June 16, 2009 / Rules and Regulations
Authority: 42 U.S.C. 7401 et seq.; 33 U.S.C.
1251 et seq.; 42 U.S.C. 300f et seq.; 42 U.S.C.
6901 et seq.; 7 U.S.C. 136 et seq.; 15 U.S.C.
2601 et seq.; 42 U.S.C. 13101 et seq.; Public
Law 104–134, 110 Stat. 1321, 1321–299
(1996); Public Law 105–65, 111 Stat. 1344,
1373 (1997); 5. 105–276, 112 Stat. 2461, 2499
(1988).
Subpart A—[Amended]
2. Amend § 35.101 by adding
paragraph (a)(20) to read as follows:
■
§ 35.420
§ 35.101 Environmental programs covered
by the subpart.
(a) * * *
(20) State Response Program Grants
(section 128(a) of the Comprehensive
Environmental Response,
Compensation, and Liability Act
(CERCLA)).
*
*
*
*
*
■ 3. Section 35.133 is amended by
revising paragraph (a) to read as follows:
§ 35.133
Programs eligible for inclusion.
(a) Eligible programs. Except as
provided in paragraph (b) of this
section, the environmental programs
eligible, in accordance with
appropriation acts, for inclusion in a
Performance Partnership Grant are
listed in § 35.101(a)(2) through (17) and
(20). (Funds available from the section
205(g) State Administration Grants
program (§ 35.100(b)(18)) and the Water
Quality Management Planning Grant
program (§ 35.100(b)(19)) and funds
awarded to states under State Response
Program Grants (§ 35.100(b)(20)) to
capitalize a revolving loan fund for
Brownfield remediation or purchase
insurance or develop a risk sharing
pool, an indemnity pool, or insurance
mechanism to provide financing for
response actions may not be included in
Performance Partnership Grants.)
*
*
*
*
*
■ 4. Subpart A is amended by adding an
undesignated center heading and
§§ 35.419, 35.420 and 35.421 to read as
follows:
Subpart A—[Amended]
State Response Program Grants
(CERCLA Section 128(A))
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§ 35.419
Purpose.
(a) Purpose of section. Sections 35.419
through 35.421 govern State Response
Program Grants (as defined in section
128(a) of the Comprehensive
Environmental Response,
Compensation, and Liability Act
(CERCLA)).
(b) Purpose of program. State
Response Program Grants are awarded
to States to establish or enhance the
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15:01 Jun 15, 2009
Jkt 217001
response program of the State; capitalize
a revolving loan fund for Brownfield
remediation under section 104(k)(3) of
CERCLA; or purchase insurance or
develop a risk sharing pool, an
indemnity pool, or insurance
mechanism to provide financing for
response actions under a State response
program.
Basis for allotment.
The Administrator allots response
program funds to each EPA regional
office. Regional Administrators award
funds to States based on their
programmatic needs and applicable EPA
guidance.
§ 35.421
Maximum federal share.
The Regional Administrator may
provide up to 100 percent of the
approved work plan costs with the
exception of the cost shares required by
CERCLA 104(k)(9)(B)(iii) for
capitalization of revolving loan funds
under CERCLA 104(k)(3).
5. Amend § 35.501 by adding
paragraph (a)(10) to read as follows:
■
§ 35.501 Environmental programs covered
by the subpart.
Subpart B—[Amended]
Tribal Response Program Grants
(CERCLA Section 128(A))
§ 35.736
Purpose.
(a) Purpose of section. Sections 35.736
through 35.738 govern Tribal Response
Program Grants (as defined in section
128(a) of the Comprehensive
Environmental Response,
Compensation, and Liability Act
(CERCLA)).
(b) Purpose of program. Tribal
Response Program Grants are awarded
to Tribes to establish or enhance the
response program of the Tribe;
capitalize a revolving loan fund for
brownfield remediation under section
104(k)(3) of CERCLA; or purchase
insurance or develop a risk sharing
pool, an indemnity pool, or insurance
mechanism to provide financing for
response actions under a Tribal
response program.
§ 35.737
Basis for allotment.
The Administrator allots response
program funds to each EPA regional
office. Regional Administrators award
funds to Tribes based on their
programmatic needs and applicable EPA
guidance.
(a) * * *
(10) Tribal Response Program Grants
(section 128(a) of the Comprehensive
Environmental Response,
Compensation, and Liability Act
(CERCLA)).
*
*
*
*
*
§ 35.738
6. Section 35.533 is amended by
revising paragraph (a) to read as follows:
[FR Doc. E9–14114 Filed 6–15–09; 8:45 am]
■
§ 35.533
BILLING CODE 6560–50–P
Programs eligible for inclusion.
(a) Eligible programs. Except as
provided in paragraph (b) of this
section, the environmental programs
eligible for inclusion in a Performance
Partnership Grant are listed in
§ 35.101(a)(2) through (10) of this
subpart. Funds awarded to tribes under
Tribal Response Program Grants
(§ 35.101(a)(10)) to capitalize a revolving
loan fund for Brownfield remediation or
purchase insurance or develop a risk
sharing pool, an indemnity pool, or
insurance mechanism to provide
financing for response actions may not
be included in Performance Partnership
Grants.
*
*
*
*
*
7. Subpart B is amended by adding a
new undesignated center heading and
§§ 35.736, 35.737 and 35.738 to read as
follows:
■
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Maximum federal share.
The Regional Administrator may
provide up to 100 percent of the
approved work plan costs with the
exception of the cost shares required by
CERCLA 104(k)(9)(B)(iii) for
capitalization of revolving loan funds
under CERCLA 104(k)(3).
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Fmt 4700
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2007–0287; FRL–8918–2]
Approval and Promulgation of Air
Quality Implementation Plans; Virginia;
Northern Virginia Reasonably
Available Control Technology Under
the 8-Hour Ozone National Ambient Air
Quality Standard
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 consists of a
demonstration that the Virginia portion
(Cities of Alexandria, Fairfax, Falls
Church, Manassas, and Manassas Park;
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Counties of Arlington, Fairfax, Loudon,
and Prince William) of the Washington,
DC-MD-VA 8-Hour Ozone
Nonattainment Area meets the
requirements of reasonably available
control technology (RACT) for oxides of
nitrogen (NOX) and volatile organic
compounds (VOCs) set forth by the
Clean Air Act (CAA). These
requirements are based on: Certification
that previously adopted RACT controls
in Virginia’s SIP that were approved by
EPA under the 1-hour ozone national
ambient air quality standard (NAAQS)
are based on the currently available
technically and economically feasible
controls, and that they continue to
represent RACT for the 8-hour
implementation purposes; a negative
declaration demonstrating that no
facilities exist in the Virginia portion of
the Washington, DC-MD-VA area for
certain control technology guideline
(CTG) categories; and a new RACT
determination for a specific source. This
action is being taken under the CAA.
DATES: Effective Date: This final rule is
effective on July 16, 2009.
ADDRESSES: EPA has established a
docket for this action under Docket ID
Number EPA–R03–OAR–2007–0287. 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 the Virginia Department of
Environmental Quality, 629 East Main
Street, Richmond, Virginia 23219.
FOR FURTHER INFORMATION CONTACT:
Gregory Becoat, (215) 814–2036, or by
e-mail at becoat.gregory@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On March 19, 2009 (74 FR 11702),
EPA published a notice of proposed
rulemaking (NPR) for the
Commonwealth of Virginia. The NPR
proposed approval of the requirements
of RACT under the 8-hour ozone
NAAQS. EPA received no comments on
the proposal to approve Virginia’s SIP
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revision. The formal SIP revision was
submitted by the Commonwealth of
Virginia on October 23, 2006.
II. Summary of SIP Revision
Virginia’s SIP revision contains the
requirements of RACT set forth by the
CAA under the 8-hour ozone NAAQS.
Virginia’s SIP revision is consistent with
the process in the Phase 2 Rule
preamble, and satisfies the requirements
of RACT set forth by the CAA under the
8-hour ozone NAAQS. Virginia’s SIP
revision satisfies the 8-hour RACT
requirements through (1) certification
that previously adopted RACT controls
in Virginia’s SIP that were approved by
EPA under the 1-hour ozone NAAQS
are based on the currently available
technically and economically feasible
controls, and continues to represent
RACT for the 8-hour implementation
purposes; (2) a negative declaration
demonstrating that no facilities exist in
the Virginia portion of the Washington,
DC-MD-VA area for the applicable CTG
categories; and (3) a new RACT
determination for a single source. Other
requirements of Virginia’s 8-hour RACT
and the rationale for EPA’s proposed
action are explained in the NPR and
will not be restated here. No public
comments were received on the NPR.
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
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28445
prepared independently of the
assessment process; (3) that demonstrate
a clear, imminent and substantial
danger to the public health or
environment; or (4) that are required by
law.
On January 12, 1998, the
Commonwealth of Virginia Office of the
Attorney General provided a legal
opinion that states that the Privilege
law, Va. Code Sec. 10.1–1198, precludes
granting a privilege to documents and
information ‘‘required by law,’’
including documents and information
‘‘required by Federal law to maintain
program delegation, authorization or
approval,’’ since Virginia must ‘‘enforce
Federally authorized environmental
programs in a manner that is no less
stringent than their Federal counterparts
* * *.’’ The opinion concludes that
‘‘[r]egarding § 10.1–1198, therefore,
documents or other information needed
for civil or criminal enforcement under
one of these programs could not be
privileged because such documents and
information are essential to pursuing
enforcement in a manner required by
Federal law to maintain program
delegation, authorization or approval.’’
Virginia’s Immunity law, Va. Code
Sec. 10.1–1199, provides that ‘‘[t]o the
extent consistent with requirements
imposed by Federal law,’’ any person
making a voluntary disclosure of
information to a state agency regarding
a violation of an environmental statute,
regulation, permit, or administrative
order is granted immunity from
administrative or civil penalty. The
Attorney General’s January 12, 1998
opinion states that the quoted language
renders this statute inapplicable to
enforcement of any Federally authorized
programs, since ‘‘no immunity could be
afforded from administrative, civil, or
criminal penalties because granting
such immunity would not be consistent
with Federal law, which is one of the
criteria for immunity.’’
Therefore, EPA has determined that
Virginia’s Privilege and Immunity
statutes will not preclude the
Commonwealth from enforcing its
program consistent with the Federal
requirements. In any event, because
EPA has also determined that a state
audit privilege and immunity law can
affect only state enforcement and cannot
have any impact on Federal
enforcement authorities, EPA may at
any time invoke its authority under the
CAA, including, for example, sections
113, 167, 205, 211 or 213, to enforce the
requirements or prohibitions of the state
plan, independently of any state
enforcement effort. In addition, citizen
enforcement under section 304 of the
CAA is likewise unaffected by this, or
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Federal Register / Vol. 74, No. 114 / Tuesday, June 16, 2009 / Rules and Regulations
any, state audit privilege or immunity
law.
IV. Final Action
EPA is approving the 8-hour RACT as
a revision to the Commonwealth of
Virginia’s SIP. Virginia’s SIP revision
contains the requirements of RACT set
forth by the CAA under the 8-hour
ozone NAAQS. This SIP revision was
submitted on October 23, 2006.
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
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);
Name of non-regulatory
SIP revision
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*
RACT under the 8-Hour
ozone NAAQS.
VerDate Nov<24>2008
• 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).
Applicable geographic area
*
15:01 Jun 15, 2009
State submittal
date
*
*
Virginia portion of the Washington,
DC-MD-VA area.
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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 August 17, 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,
pertaining to the Commonwealth of
Virginia’s RACT provisions under the 8hour ozone NAAQS, 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.
Dated: June 5, 2009.
William C. Early,
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
(e) is amended by adding the entry for
‘‘RACT under the 8-hour ozone
NAAQS’’—Virginia portion of the
Washington, DC-MD-VA area at the end
of the table to read as follows:
■
§ 52.2420
*
Identification of plan.
*
*
(e) * * *
*
*
EPA approval date
*
*
06/16/09, [Insert page number where
the document begins].
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Additional
explanation
*
Federal Register / Vol. 74, No. 114 / Tuesday, June 16, 2009 / Rules and Regulations
[FR Doc. E9–14018 Filed 6–15–09; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2008–0595; FRL–8918–1]
Approval and Promulgation of Air
Quality Implementation Plans; District
of Columbia; Reasonably Available
Control Technology Under the 8-Hour
Ozone National Ambient Air Quality
Standard
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
cprice-sewell on PRODPC61 with RULES
SUMMARY: EPA is approving a State
Implementation Plan (SIP) revision
submitted by the District of Columbia.
This SIP revision consists of a
demonstration that the District of
Columbia meets the requirements of
reasonably available control technology
(RACT) for nitrogen oxides (NOX) and
volatile organic compounds (VOCs) set
forth by the Clean Air Act (CAA). This
SIP revision demonstrates that all
requirements for RACT are met either
through: Certification that previously
adopted RACT controls in the District of
Columbia’s SIP that were approved by
EPA under the 1-hour ozone National
Ambient Air Quality Standard (NAAQS)
are based on the currently available
technically and economically feasible
controls, and that they continue to
represent RACT for the 8-hour
implementation purposes; and a
negative declaration demonstrating that
no facilities exist in the District of
Columbia for the applicable control
technology guideline (CTG) categories.
This action is being taken under the
CAA.
DATES: Effective Date: The final rule is
effective on July 16, 2009.
ADDRESSES: EPA has established a
docket for this action under Docket ID
Number EPA–R03–OAR–2008–0595. All
documents in the electronic docket are
listed in the https://www.regulations.gov
index. Although listed in the index,
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 in https://
www.regulations.gov or in hard copy
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28447
III. Final Action
EPA is approving the District of
Columbia SIP revision that addresses
the requirements of RACT under the 8hour ozone NAAQS. The District of
Columbia’s SIP revision was submitted
on September 22, 2008.
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 Clean Air Act. Accordingly, this
action merely proposes to approve 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
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.
IV. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA and applicable Federal regulations.
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
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 District of Columbia
Department of the Environment, 51 N
Street, NE., 6th Floor, Washington, DC
20002.
FOR FURTHER INFORMATION CONTACT:
Patrick J. Egan, (215) 814–3167, or by
e-mail at egan.patrick@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On March 25, 2009 (75 FR 12778),
EPA published a notice of proposed
rulemaking (NPR) for the District of
Columbia. The NPR proposed approval
of the requirements of RACT under the
8-hour Ozone NAAQS. EPA received no
comments on the proposal to approve
the District of Columbia SIP revision.
The formal SIP revision was submitted
by the District of Columbia on
September 22, 2008.
II. Summary of SIP Revision
On September 22, 2008, the District of
Columbia Department of Environment
(DDOE) submitted a revision to its SIP
that addresses the requirements of
RACT under the 8-hour ozone NAAQS
set forth by the CAA. The District of
Columbia’s SIP revision is consistent
with the process in the Phase 2 Rule
preamble, and satisfies the requirements
of RACT set forth by the CAA under the
8-hour ozone NAAQS. The District of
Columbia’s SIP revision satisfies the 8hour RACT requirements through a
certification that previously adopted
RACT controls in the District of
Columbia’s SIP that were approved by
EPA under the 1-hour ozone NAAQS
are based on the currently available
technically and economically feasible
controls, and continues to represent
RACT for the 8-hour implementation
purposes and a negative declaration
demonstrating that facilities exist in the
District of Columbia for the applicable
control technology guideline (CTG)
categories.
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]]>Agencies
[Federal Register Volume 74, Number 114 (Tuesday, June 16, 2009)]
[Rules and Regulations]
[Pages 28444-28447]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-14018]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2007-0287; FRL-8918-2]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Northern Virginia Reasonably Available Control Technology
Under the 8-Hour Ozone National Ambient Air Quality Standard
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 consists
of a demonstration that the Virginia portion (Cities of Alexandria,
Fairfax, Falls Church, Manassas, and Manassas Park;
[[Page 28445]]
Counties of Arlington, Fairfax, Loudon, and Prince William) of the
Washington, DC-MD-VA 8-Hour Ozone Nonattainment Area meets the
requirements of reasonably available control technology (RACT) for
oxides of nitrogen (NOX) and volatile organic compounds
(VOCs) set forth by the Clean Air Act (CAA). These requirements are
based on: Certification that previously adopted RACT controls in
Virginia's SIP that were approved by EPA under the 1-hour ozone
national ambient air quality standard (NAAQS) are based on the
currently available technically and economically feasible controls, and
that they continue to represent RACT for the 8-hour implementation
purposes; a negative declaration demonstrating that no facilities exist
in the Virginia portion of the Washington, DC-MD-VA area for certain
control technology guideline (CTG) categories; and a new RACT
determination for a specific source. This action is being taken under
the CAA.
DATES: Effective Date: This final rule is effective on July 16, 2009.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2007-0287. 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 the
Virginia Department of Environmental Quality, 629 East Main Street,
Richmond, Virginia 23219.
FOR FURTHER INFORMATION CONTACT: Gregory Becoat, (215) 814-2036, or by
e-mail at becoat.gregory@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On March 19, 2009 (74 FR 11702), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed
approval of the requirements of RACT under the 8-hour ozone NAAQS. EPA
received no comments on the proposal to approve Virginia's SIP
revision. The formal SIP revision was submitted by the Commonwealth of
Virginia on October 23, 2006.
II. Summary of SIP Revision
Virginia's SIP revision contains the requirements of RACT set forth
by the CAA under the 8-hour ozone NAAQS. Virginia's SIP revision is
consistent with the process in the Phase 2 Rule preamble, and satisfies
the requirements of RACT set forth by the CAA under the 8-hour ozone
NAAQS. Virginia's SIP revision satisfies the 8-hour RACT requirements
through (1) certification that previously adopted RACT controls in
Virginia's SIP that were approved by EPA under the 1-hour ozone NAAQS
are based on the currently available technically and economically
feasible controls, and continues to represent RACT for the 8-hour
implementation purposes; (2) a negative declaration demonstrating that
no facilities exist in the Virginia portion of the Washington, DC-MD-VA
area for the applicable CTG categories; and (3) a new RACT
determination for a single source. Other requirements of Virginia's 8-
hour RACT and the rationale for EPA's proposed action are explained in
the NPR and will not be restated here. No public comments were received
on the NPR.
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
[[Page 28446]]
any, state audit privilege or immunity law.
IV. Final Action
EPA is approving the 8-hour RACT as a revision to the Commonwealth
of Virginia's SIP. Virginia's SIP revision contains the requirements of
RACT set forth by the CAA under the 8-hour ozone NAAQS. This SIP
revision was submitted on October 23, 2006.
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 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 August 17, 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, pertaining to the Commonwealth of Virginia's RACT
provisions under the 8-hour ozone NAAQS, 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.
Dated: June 5, 2009.
William C. Early,
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 (e) is amended by adding
the entry for ``RACT under the 8-hour ozone NAAQS''--Virginia portion
of the Washington, DC-MD-VA area at the end of the table to read as
follows:
Sec. 52.2420 Identification of plan.
* * * * *
(e) * * *
----------------------------------------------------------------------------------------------------------------
Name of non-regulatory SIP Applicable State Additional
revision geographic area submittal date EPA approval date explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
RACT under the 8-Hour ozone Virginia portion of 10/23/06 06/16/09, [Insert .....................
NAAQS. the Washington, DC- page number where
MD-VA area. the document
begins].
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[[Page 28447]]
[FR Doc. E9-14018 Filed 6-15-09; 8:45 am]
BILLING CODE 6560-50-P
