**ENVIRONMENTAL PROTECTION AGENCY**

**40 CFR Part 52**

**\[EPA-R03-OAR-2007-1169; FRL- \]**

**Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Amendments to Existing Regulation Provisions Concerning
Reasonably Available Control Technology**

**AGENCY:** Environmental Protection Agency (EPA).

**ACTION:** Direct final rule.

**SUMMARY:** EPA is taking direct final action to approve revisions to
the Commonwealth of Virginia State Implementation Plan (SIP). The
revisions pertains to administrative amendments

to the Commonwealth regulation governing source-specific nitrogen oxides
(NOx) reasonable available control technology (RACT). EPA is approving
these revisions to the Commonwealth

of Virginia SIP in accordance with the requirements of the Clean Air Act
(CAA).

**DATES:** This rule is effective on \[[Insert date 60 days after
publication in the Federal Register\]]{.underline} without further
notice, unless EPA receives adverse written comment by \[[Insert date 30
days]{.underline}

[after publication in the Federal Register\]]{.underline}. If EPA
receives such comments, it will publish a

timely withdrawal of the direct final rule in the [Federal]{.underline}
[Register]{.underline} and inform the public that the

rule will not take effect.

**ADDRESSES:** Submit your comments, identified by Docket ID Number
**EPA-R03-OAR-**

**2007-1169** by one of the following methods:

B.  [www.regulations.gov]{.underline}. Follow the on-line instructions
    for submitting comments.

B. E-mail: fernandez.cristina@epa.gov

C. Mail: EPA**-R03-OAR-2007-1169**, Cristina Fernandez, Chief, Air
Quality Planning

Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region
III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.

D. Hand Delivery: At the previously-listed EPA Region III address. Such
deliveries are only accepted during the Docket=s normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.

***Instructions:*** Direct your comments to Docket ID No.
**EPA-R03-OAR-2007-1169**. EPA\'s policy is that all comments received
will be included in the public docket without change, and may be made
available online at [www.regulations.gov]{.underline}, including any
personal information provided, unless the comment includes information
claimed to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Do not submit
information that you consider to be CBI or otherwise protected through
[www.regulations.gov]{.underline} or e-mail. The
[www.regulations.gov]{.underline} website is an Aanonymous access@
system, which means EPA will not know your identity or contact
information unless you provide it in the body of your comment. If you
send an e-mail comment directly to EPA without going through
[www.regulations.gov]{.underline}, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA may
not be able to consider your comment. Electronic files should avoid the
use of special characters, any form of encryption, and be free of any
defects or viruses.

***Docket:*** All documents in the electronic docket are listed in the
[www.regulations.gov]{.underline} index. Although listed in the index,
some information is not publicly available, i.e., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically in
[www.regulations.gov]{.underline} or in hard copy during normal business
hours at the Air Protection Division, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
Copies of the State submittal are available at 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. Summary of the SIP Revision**

On September 28, 2006, the Commonwealth of Virginia submitted a revision
to its State Implementation Plan. The revision consists of
administrative amendments to Virginia's Regulation A99 pertaining to
RACT for the control of NOx emissions from major stationary sources. The
amendments consist of administrative wording changes, removal of surplus
definitions, and the paragraph renumbering of a particular section.

**II. Description of SIP Revision and EPA Review**

These SIP revisions consist of the following changes:

1\. Administrative wording changes to Regulations 9 VAC 5-40-240, 9 VAC
5-40-250, and 9 VAC 5-40-311B.

2\. Removal of definitions "Combustion unit," "Fuel burning equipment
installation," and "Total capacity" in section 9 VAC 5-40-311B.3.
Section 9 VAC 5-40-311B.1 establishes that the definitions in section 9
VAC 5-40-311B.3 apply only to section 9 VAC 5-40-311. Although EPA had
approved these revisions on April 28, 1999 (64 FR 22789), these three
terms are used only in regulatory provisions which are not part of the
approved Virginia SIP.

3\. Renumbering of 9 VAC 5-40-311C.3.b., d., e., f., and g. to 9 VAC
5-40-311C.3.a., through e. respectively.

EPA views the revisions to 9 VAC 5-40-240, 9 VAC 5-40-250, and 9 VAC
5-40-311B., as administrative changes. EPA also views the renumbering of
9 VAC 5-40-311C.3.b., d., e., f., and g. to 9 VAC 5-40-311C.3.a.,
through e. as an administrative re-codification. EPA considers these
revisions non-substantive, as they do not affect the scope of the
currently approved Virginia SIP, and consequently, cannot interfere with
timely attainment or progress towards attainment of a national ambient
air quality standard (NAAQS), nor interfere with any other provision of
the Clean Air Act (CAA).

**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) Aprivilege@\' 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 Arequired by law,@ including documents and information
Arequired by Federal law to maintain program delegation, authorization
or approval,@ since Virginia must Aenforce Federally authorized
environmental programs in a manner that is no less stringent than their
Federal counterparts. . . .@ The opinion concludes that A\[r\]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 A\[t\]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 Ano 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 Commonwealth of Virginia SIP revision to make the
administrative changes to 9 VAC 5-40-240, 9 VAC 5-40-250, and 9 VAC
5-40-311, which was submitted on September 28, 2006. EPA is publishing
this rule without prior proposal because the Agency views this as a
noncontroversial amendment and anticipates no adverse comment. However,
in the AProposed Rules@ section of today=s [Federal
Register]{.underline}, 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 \[[Insert date 60 days from
date of publication in the Federal Register]{.underline}\] without
further notice unless EPA receives adverse comment by \[[Insert date 30
days from date of publication in the]{.underline} [Federal
Register]{.underline}\]. If EPA receives adverse comment, EPA will
publish a timely withdrawal in the [Federal Register]{.underline}
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.
Please note that if EPA receives adverse comment on an amendment,
paragraph, or section of this rule and if that provision may be severed
from the remainder of the rule, EPA may adopt as final those provisions
of the rule that are not the subject of an adverse comment.

**V. Statutory and Executive Order Reviews**

A.  **General Requirements**

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action
is not a \"significant regulatory action\" and therefore is not subject
to review by the Office of Management and Budget. For this reason, this
action is also not subject to Executive Order 13211, \"Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use\" (66 FR 28355, May 22, 2001). This action merely
approves state law as meeting Federal requirements and imposes no
additional requirements beyond those imposed by state law. Accordingly,
the Administrator certifies that this rule will not have a significant
economic impact on a substantial number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601 [et seq]{.underline}.). 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). This rule also does not have
tribal implications because it will not have a substantial direct effect
on one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes, as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This
action also does not have Federalism implications because it does not
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government, as
specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This
action merely approves a state rule implementing a Federal requirement,
and does not alter the relationship or the distribution of power and
responsibilities established in the CAA. This rule also is not subject
to Executive Order 13045 AProtection of Children from Environmental
Health Risks and Safety Risks@ (62 FR 19885, April 23, 1997), because it
approves a state rule implementing a Federal standard.

In reviewing SIP submissions, EPA=s role is to approve state choices,
provided that they meet the criteria of the CAA. 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
CAA. Thus, the requirements of section 12(d) of the National Technology
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.
This rule does not impose an information collection burden under the
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 [et
seq]{.underline}.).

**B. Submission to Congress and the Comptroller General**

The Congressional Review Act, 5 U.S.C. 801 [et seq]{.underline}., 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]{.underline}.
This rule is not a Amajor 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 [\[insert date 60 days from date of publication
of this document in the Federal Register]{.underline}\]. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action pertaining to amendments to the Commonwealth
of Virginia regulations governing source-specific NOx RACT 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.

February 12, 2008 /s/

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Dated: Donald S. Welsh,

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]{.underline}.

Subpart VV B Virginia

2\. In \' 52.2420, the table in paragraph (c) is amended by revising the
entries for Chapter 40, Sections 5-40-240, 5-40-250, and 5-40-311 to
read as follows:

[\' 52.2420]{.underline} [Identification of plan]{.underline}.

> \* \* \* \* \*

\(c\) \* \* \*

EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES

+------------+------------------------+-------+----------+-----------+
| **State    | **Title/subject**      | **    | **EPA    | **Ex      |
| citation   |                        | State | approval | planation |
| (9 VAC     |                        | effe  | date**   | \[former  |
| 5)**       |                        | ctive |          | SIP       |
|            |                        | d     |          | cit       |
|            |                        | ate** |          | ation\]** |
+============+========================+=======+==========+===========+
| \* \* \*   |                        |       |          |           |
| \* \* \*   |                        |       |          |           |
| \*         |                        |       |          |           |
+------------+------------------------+-------+----------+-----------+
| **Chapter  | **Existing Stationary  |       |          |           |
| 40**       | Sources**              |       |          |           |
+------------+------------------------+-------+----------+-----------+
| \* \* \*   |                        |       |          |           |
| \* \* \*   |                        |       |          |           |
| \*         |                        |       |          |           |
+------------+------------------------+-------+----------+-----------+
| **Part     | **Emission Standards** |       |          |           |
| II**       |                        |       |          |           |
+------------+------------------------+-------+----------+-----------+
| \* \* \*   |                        |       |          |           |
| \* \* \*   |                        |       |          |           |
| \*         |                        |       |          |           |
+------------+------------------------+-------+----------+-----------+
| **Article  | **General Process      |       |          |           |
| 4**        | Operations (Rule       |       |          |           |
|            | 4-4)**                 |       |          |           |
+------------+------------------------+-------+----------+-----------+
| 5-40-240   | Applicability and      | 1     | \[Insert |           |
|            | designation of         | /1/02 | [Federal |           |
|            | affected facility.     |       | Regis    |           |
|            |                        |       | ter]{.un |           |
|            |                        |       | derline} |           |
|            |                        |       | pub      |           |
|            |                        |       | lication |           |
|            |                        |       | date\]   |           |
|            |                        |       | \[Insert |           |
|            |                        |       | page     |           |
|            |                        |       | number   |           |
|            |                        |       | where    |           |
|            |                        |       | the      |           |
|            |                        |       | document |           |
|            |                        |       | begins\] |           |
+------------+------------------------+-------+----------+-----------+
| 5-40-250   | Definitions.           | 1     | \[Insert |           |
|            |                        | /1/02 | [Federal |           |
|            |                        |       | Regis    |           |
|            |                        |       | ter]{.un |           |
|            |                        |       | derline} |           |
|            |                        |       | pub      |           |
|            |                        |       | lication |           |
|            |                        |       | date\]   |           |
|            |                        |       | \[Insert |           |
|            |                        |       | page     |           |
|            |                        |       | number   |           |
|            |                        |       | where    |           |
|            |                        |       | the      |           |
|            |                        |       | document |           |
|            |                        |       | begins\] |           |
+------------+------------------------+-------+----------+-----------+
| \* \* \*   |                        |       |          |           |
| \* \* \*   |                        |       |          |           |
| \*         |                        |       |          |           |
+------------+------------------------+-------+----------+-----------+
| 5-40-311   | Reasonably available   | 1     | \[Insert | Removal   |
|            | control technology     | /1/02 | [Federal | of        |
|            | guidelines for         |       | Regis    | de        |
|            | stationary sources of  |       | ter]{.un | finitions |
|            | nitrogen oxides.       |       | derline} | "C        |
|            |                        |       | pub      | ombustion |
|            |                        |       | lication | unit,"    |
|            |                        |       | date\]   | "Fuel     |
|            |                        |       | \[Insert | burning   |
|            |                        |       | page     | equipment |
|            |                        |       | number   | inst      |
|            |                        |       | where    | allation" |
|            |                        |       | the      | and       |
|            |                        |       | document | "Total    |
|            |                        |       | begins\] | capacity" |
|            |                        |       |          | in 9 VAC  |
|            |                        |       |          | 5-4       |
|            |                        |       |          | 0-311B.3. |
|            |                        |       |          |           |
|            |                        |       |          | **Exc     |
|            |                        |       |          | eption:** |
|            |                        |       |          | 311D.     |
+------------+------------------------+-------+----------+-----------+
| \* \* \*   |                        |       |          |           |
| \* \* \*   |                        |       |          |           |
| \*         |                        |       |          |           |
+------------+------------------------+-------+----------+-----------+

\* \* \* \* \*