Approval and Promulgation of Air Quality Implementation Plans; Virginia; Revised Format for Materials Being Incorporated by Reference; Approval of Recodification of the Virginia Administrative Code

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is approving revisions to the Virginia State Implementation Plan submitted on January 13, 1998 and June 7, 1999 by the Virginia Department of Environmental Quality. These submittals include a recodification of and associated administrative revisions to Virginia's air pollution control regulations. This recodification reorganizes and renumbers the Virginia SIP to match the numbering system set forth in the Virginia Administrative Code. EPA is also revising the format of regulations for materials submitted by Virginia that are incorporated by reference (IBR) into their respective State implementation plans (SIPs). These provisions include both rules and source-specific requirements which EPA has approved as part of the Virginia SIP.

DATES:

This rule is effective on June 20, 2000 without further notice, unless EPA receives adverse written comment by May 22, 2000. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

Written comments should be mailed to Marcia L. Spink, Associate Director, Office of Air Programs, Mailcode 3AP20, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the documents relevant to this action are available for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103; the Air and Radiation Docket and Information Center, U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC 20460; and the Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia, 23219.

FOR FURTHER INFORMATION CONTACT:

Harold A. Frankford, (215) 814-2108 or by e-mail at frankford.harold@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, whenever “we” “us”, or “our” is used, we mean EPA.

I. Revised IBR Document

The supplementary information is organized in the following order:

What a SIP Is

How EPA Enforces SIPs

How the State and EPA Updates the SIP

How EPA Compiles the SIPs

How EPA Organizes the SIP Compilation

Where You Can Find a Copy of the SIP Compilation

The Format of the New Identification of Plan Section

When a SIP Revision Become Federally Enforceable

The Historical Record of SIP Revision Approvals

What EPA Is Doing In This Action

How This Document Complies With the Federal Administrative Requirements for Rulemaking

What a SIP Is

Each state has a SIP containing the control measures and strategies used to attain and maintain the national ambient air quality standards (NAAQS). The SIP is extensive, containing such elements as air pollution control regulations, emission inventories, monitoring network, attainment demonstrations, and enforcement mechanisms.

How EPA Enforces SIPs

Each state must formally adopt the control measures and strategies in the SIP after the public has had an opportunity to comment on them. They are then submitted to EPA as SIP revisions on which EPA must formally act.

Once these control measures and strategies are approved by EPA, after notice and comment, they are incorporated into the Federally approved SIP and are identified in Part 52 (Approval and Promulgation of Implementation Plans), Title 40 of the Code of Federal Regulations (40 CFR Part 52). The full text of the state regulation approved by EPA is not reproduced in its entirety in 40 CFR Part 52, but is “incorporated by reference”. This means that EPA has approved a given state regulation with a specific effective date. This format allows both EPA and the public to know which measures are contained in a given SIP, and insures that the State is enforcing the regulations. It also allows EPA and the public to take enforcement action, should a State not enforce its SIP-approved regulations.

How the State and EPA Update the SIP

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 Federally-approved SIPs, as a result of consultations between EPA and OFR.

We began the process of developing: (1) A revised SIP document for each state that would be IBR under the provisions of 1 CFR Part 51; (2) a revised mechanism for announcing EPA approval of revisions to an applicable SIP and updating both the IBR document and the CFR; and (3) a revised format of the “Identification of Plan” sections for each applicable subpart to reflect these revised IBR procedures. 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.

How EPA Compiles the SIPs

The Federally-approved regulations, source-specific permits, and nonregulatory provisions (entirely or portions of) submitted by each state agency have been compiled by EPA into a “SIP compilation.” The SIP compilation contains the updated regulations, source-specific permits, and nonregulatory provisions approved by EPA through previous rulemaking actions in the Federal Register. The compilations are contained in three-ring binders and will be updated, primarily on an annual basis.

How EPA Organizes the SIP Compilation

Each compilation contains three parts. Part one contains the regulations, part two contains the source-specific requirements that have been approved as part of the SIP and part three contains nonregulatory provisions that have been EPA approved. Each part consists of a table of identifying information for each SIP-approved regulation, each SIP-approved source-specific permit, and each nonregulatory SIP provision. In this action, EPA is publishing the tables summarizing Parts one and two for each State. The table of identifying information in the compilation corresponds to the table of contents published in 40 CFR Part 52 for these states. EPA will publish the summary list of Part Three SIP provisions for Virginia in a separate action. EPA Regional Offices have the primary responsibility for ensuring accuracy and updating the compilations.

Where You Can Find a Copy of the SIP Compilation

EPA Region III developed and will maintain the compilation for Virginia. A copy of the full text of each state's regulatory and source-specific SIP compilation will also be maintained at the OFR and EPA's Air Docket and Information Center.

The Format of the New Identification of Plan Section

In order to better serve the public, EPA revised the organization of the “Identification of Plan” section and included additional information to clarify the enforceable elements of the SIP. The revised Identification of Plan section contains five subsections:

1. Purpose and scope

2. Incorporation by reference

3. EPA-approved regulations

4. EPA-approved source-specific permits

5. EPA-approved nonregulatory provisions such as transportation control measures, statutory provisions, control strategies, monitoring networks, etc.

When a SIP Revision Becomes Federally Enforceable

All revisions to the applicable SIP become Federally enforceable as of the effective date of the revisions to paragraphs (c), (d), or (e) of the applicable Identification of Plan section found in each subpart of 40 CFR Part 52.

The Historical Record of SIP Revision Approvals

To facilitate enforcement of previously approved SIP provisions and provide a smooth transition to the new SIP processing system, EPA retains the original Identification of Plan section, previously appearing in the CFR as the first or second section of Part 52 for each state subpart. After an initial two-year period, EPA will review its experience with the new system and enforceability of previously approved SIP measures and will decide whether or not to retain the Identification of Plan appendices for some further period.

II. Recodification Submittals

On March 6, 1992, the Virginia State Assembly enacted Chapter 216—an act to amend Section 9-77.7, Code of Virginia, effective July 1, 1992. The amendment authorized reorganization of the Virginia Administrative Code (VAC), including reorganization of the air pollution control regulations. Beginning April 17, 1995, Virginia began publication of the air pollution control regulations in the new format. Virginia also announced the adoption of the new format for the Appendices, effective July 1, 1997. The final version of the Appendices were published in the May 26, 1997 Virginia Register of Regulations.

Public Hearings Held: December 18, 1997, in Richmond.

A. Revised Structure of Virginia's Regulations

Under the revised VAC system, Title 9 is the designated title for provisions related to the Environment, while Agency Number 5 corresponds to the Virginia Department of Environmental Quality (DEQ), Bureau of Air Pollution Control. Hence, Virginia's air pollution control regulations are cited as 9 VAC 5-xxx-xxx. This citation system replaces System VR-120-01, the general cite for Virginia's regulations for the Control and Abatement of Air Pollution prior to July 1, 1992. When approved, the regulation numbering format for the Federally-enforceable Virginia SIP regulations would mirror those of the State-enforceable regulations, with some exceptions.

Because Virginia's air pollution control regulations are extensive, they are arranged in subgroups such as chapters, parts, articles, and sections under the 9 VAC 5 system. The Virginia regulations under VR-120-01 also were arranged in subgroups, but with different names. Here is a comparison chart:

Virginia Regulation 9 VAC 5 contains 10 chapters (10, 20, 30, 40, 50, 60, 70, 80, 160, and 170), as described below:  

Chapter 10 General Definitions

Chapter 20 General Provisions

Chapter 30 Ambient Air Quality Standards

Chapter 40 Existing Stationary Sources

Chapter 50 New and Modified Stationary Sources

Chapter 70 Air Pollution Episode Prevention

Chapter 80 Permits for Stationary Sources

Chapter 91 Regulations for the Control of Motor Vehicle Emissions in Northern Virginia

Chapter 160 General Conformity Rules

Chapter 170 Regulation for General Administration

Within 9 VAC 5 Chapter 40, there are two major parts— Special Provisions (Part I) and Emissions Standards (Part II). Part I consists of provisions covering the following topics:

—Applicability

—Compliance (consisting of compliance schedules and methods for interpreting compliance of emissions standards based on process weight tables)

—Emissions testing

—Source monitoring

—Notification, records, and reporting

Part II consists of articles which contain general provisions governing visible emissions and fugitive dust/emissions, open burning, mobile sources, and designated source categories. These articles are listed below:

Article 1 Visible Emissions and Fugitive Dust/emissions

Article 4 General Process Operations

Article 5 Synthesized Pharmaceutical Products Manufacturing Operations

Article 6 Rubber Tire Manufacturing Operations

Article 7 Incinerators

Article 8 Fuel Burning Equipment

Article 9 Coke Ovens

Article 10 Asphalt Concrete Plants

Article 11 Petroleum Refinery Operations

Article 12 Chemical Fertilizer Manufacturing Operations

Article 13 Kraft Pulp Mills

Article 14 Sand and Gravel Processing Operations and Stone Quarrying and Processing Operations

Article 15 Coal Preparation Plants

Article 16 Portland Cement Plants

Article 17 Woodworking Operations

Article 18 Primary and Secondary Metal Operations

Article 19 Lightweight Aggregate Process Operations

Article 20 Feed Manufacturing Operations

Article 21 Sulfuric Acid Production Plants

Article 22 Sulfur Recovery Operations

Article 23 Nitric Acid Production Units

Article 24 Solvent Metal Cleaning Operations

Article 25 Volatile Organic Compound Storage and Transfer Operations

Article 26 Large Coating Application Systems

Article 27 Magnet Wire Costing Application Systems

Article 28 Automobile and Light Duty Truck Coating Application Systems

Article 29 Can Coating Application Systems

Article 30 Metal Coil Coating Application Systems

Article 31 Paper and Fabric Coating Application Systems

Article 32 Vinyl Coating Application Systems

Article 33 Metal Furniture Coating Application Systems

Article 34 Miscellaneous Metal Parts and Products Coating Application Systems

Article 35 Flatwood Paneling Coating Application Systems

Article 36 Graphic Arts Printing Processes

Article 37 Petroleum Liquid Storage and Transfer Operations

Article 38 Dry Cleaning Systems

Article 39 Asphalt Paving Operations

Article 40 Open Burning

Article 41 Mobile Sources

Article 45 Lithographic Printing Processes

Within each article, there are about 16 to 20 sections. The general section titles for the SIP-approved rules consist of the following topics:

1. Applicability and Designation of Facility

2. Definitions

3. Specific emission standards for various pollutants (generally, there is one separate section for each pollutant)

4. Control technology guidelines (whenever the article contains emission standards for volatile organic compounds)

5. Standard for visible emissions

6. Standard for fugitive dust/emissions

7. Compliance

8. Test methods and procedures

9. Monitoring

10. Notification, records, and reporting

11. Registration

12. Facility and control equipment maintenance or malfunction

13. Permits

B. Revisions to Appendices

Virginia has incorporated Appendices A through S under the old VR-120 format into the regulatory structure of the 9 VAC 5 format. The citation of the SIP-approved Appendices that are cited under the VR-120 format are redesignated as follows:

C. Administrative Revisions to the State Regulations Reflecting Revisions or Additions to Certain Definitions of Terms

Virginia has added or revised certain definitions to reflect: (1) A restructuring of the Virginia Administrative Code: (2) the use of the Virginia Register to officially announce proposed and adopted Commonwealth rules and regulations; and (3) the creation of the Virginia Department of the Environment. These definitions are described below:

1. Administrative Process Act

Old: Title 9, Section 1.1:1 of the Code of Virginia (1950), as amended

Revised: Chapter 1.1:1 (§ 9-6.14:1 et seq.) of Title 9 of the Code of Virginia

2. Department (Added)

Any employee or other representative of the Virginia Department of Environmental Quality, as designated by the Director

3. Director (Revised)

Refers to the Director of the Virginia Department of Environmental Quality, replacing the old term Executive Director [of the Virginia State Air Pollution Control Board].

4. Virginia Air Pollution Control Law

Old: Title 10, Chapter 1.2 of the Code of Virginia (1950), as amended

Revised: Chapter 13 (§ 10.1-1300 et seq.) of Title 9 of the Code of Virginia

5. Virginia Register Act (Added)

Chapter 1.2 (§ 9-6.15 et seq.) of Title 9 of the Code of Virginia EPA's approval of the recodified Virginia air pollution control regulations also includes revisions to the text of definitions and regulations found in Chapters 10 through 200 to reflect: (1) References to revised regulatory citations described in the current Administrative Process Act, Virginia Register Act, and Virginia Air Pollution Control Law; and (2) references to the Department [of Environmental Quality] or Department Director

D. Revised Structure of 9 VAC 5, Chapter 80

On June 7, 1999, Virginia submitted a revised and restructured numbering systems for 9 VAC 5 Chapter 80, Article 9 (permits for major sources and major modifications locating in nonattainment areas). This SIP revision submittal will restructure the following SIP-approved regulations:

Virginia's June 7, 1999 submittal which restructures the major new source and modification permitting requirements applicable to nonattainment areas consists of administrative and format changes; there are no substantive wording changes to the current federally-enforceable provisions.

Public Hearings held: December 4, 1998, in Richmond

In a separate action, EPA will review additional revisions to Virginia's administrative provisions (9 VAC 5-20 and 9 VAC 5-170) submitted on February 18, 1998 and March 4, 1998, as well as Part II of Virginia's general conformity provisions (9 VAC 5-160), submitted by Virginia on April 20, 1998.

III. EPA Evaluation of Recodification Submittals

EPA's action will have no adverse impact on the NAAQS for the various criteria pollutants governed by Virginia's revised rules. EPA concludes that the recodification of Virginia's regulations and revised administrative provisions have no direct impact on current ambient air quality. For the most part, EPA will be able to cite the same regulatory citations used by Virginia in the event of a federal enforcement action. Differences between the Federally enforceable Virginia SIP regulatory citations and those of the Virginia's which are not Federally enforceable are noted in the chart of regulations listed in revised 40 CFR § 52.2420(c).

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, 1997, 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, 1997 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.

What EPA Is Doing in This Action

EPA is approving the recodified Virginia provisions submitted on January 13, 1998 and June 7, 1999 by the Virginia Department of Environmental Quality as revisions to the Virginia SIP. EPA is also revising the format of 40 CFR part 52 for materials submitted by Virginia that are incorporated by reference (IBR) into their respective SIPs.

EPA has reviewed the submitted revisions, but has not fully reviewed the substance of recodified regulations that were approved into the SIP in previous rulemaking actions. EPA is now merely approving the renumbering system submitted by Virginia. To the extent that we have issued any SIP calls to Virginia with respect to the adequacy of any of the rules subject to this recodification, we will continue to require Virginia to correct any such rule deficiencies despite our ap[proval of this recodification.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipate no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on June 20, 2000 without further notice unless EPA receives adverse comment by May 22, 2000. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

IV. Administrative Requirements

A. General Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).

For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (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 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 rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

B. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 20, 2000. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action to approve the recodification and associated administrative revisions of the Virginia Administrative Code into the Virginia SIP, as well as revise the format of 40 CFR part 52 for materials submitted by Virginia that are incorporated by reference 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
• Carbon monoxide
• Hydrocarbons
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

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

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

Subpart VV—Virginia

2. Section 52.2420 is redesignated as § 52.2465 and the heading and paragraph (a) are revised to read as follows:

3. A new Section 52.2420 is added to read as follows:

(d) EPA approved State Source-Specific Requirements.

(e) [Reserved]