ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2009-0871; FRL- ]

Approval and Promulgation of Air Quality Implementation Plans; Virginia

Revisions to the Definition of Volatile Organic Compound and Other Terms

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is taking direct final action to approve revisions to the Virginia State 

Implementation Plan (SIP). The revisions amend the wording of 22 definitions, including the 

definition of Volatile Organic Compound (VOC). EPA is approving these revisions to Virginia’s 

definitions 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] 

without further notice, unless EPA receives adverse written comment by [Insert date 30 days 

after publication in the Federal Register]. 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: Submit your comments, identified by Docket ID Number EPA-R03-OAR2009-0871 by one of the following methods:

 A. www.regulations.gov. Follow the on-line instructions for submitting comments.

 B. E-mail: frankford.harold@epa.gov.

 C. Mail: EPA-R03-OAR-2009-0871, Harold A. Frankford, Air Protection Division, 

Mailcode 3AP00, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, 
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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-2009-0871. EPA's 

policy is that all comments received will be included in the public docket without change, and 

may be made available online at www.regulations.gov, including any personal information 

provided, unless the comment includes information claimed to be Confidential Business 

Information (CBI) or other information whose disclosure is restricted by statute. Do not submit 

information that you consider to be CBI or otherwise protected through www.regulations.gov or 

e-mail. The www.regulations.gov 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, 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.
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Docket: All documents in the electronic docket are listed in the www.regulations.gov index. 

Although listed in the index, some information is not publicly available, i.e., CBI or other 

information whose disclosure is restricted by statute. Certain other material, such as copyrighted 

material, is not placed on the Internet and will be publicly available only in hard copy form. 

Publicly available docket materials are available either electronically in www.regulations.gov or 

in hard copy during normal business hours at the Air Protection Division, U.S. Environmental 

Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of 

the State submittal are available at the Virginia Department of Environmental Quality, 629 East 

Main Street, Richmond, Virginia, 23219.

FOR FURTHER INFORMATION CONTACT: Harold A. Frankford, (215) 814-2108, or by

e-mail at frankford.harold@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background

Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. On October 6, 

2009, the Commonwealth of Virginia submitted a formal revision to its State Implementation 

Plan (SIP). The SIP revision consists of amendments to 22 definitions listed in 9VAC5 Chapter 

10 (General Definitions), Regulation 5-10-20 (Terms defined). The amended terms are:

Ambient air quality standard, Criteria pollutant, Dispersion technique, Emission limitation, 

Emission standard, Excessive concentration, Federal Clean Air Act, Federally enforceable, Good 

engineering practice, Initial emission test, Initial performance test, Public hearing, Reference 
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method, Regulations for the Control and Abatement of Air Pollution, Reid vapor pressure, Run, 

Standard of performance, State enforceable, These regulations, True vapor pressure, Vapor 

pressure, and Volatile organic compound.

II. Summary of SIP Revision

Virginia amended the definition of “Volatile organic compound” to add the organic compound 

(1)1,1,1,2,2,3,4,5,5,5-decafluoro-3-methoxy-4-trifluoromethyl-pentane (HFE-7300) to the list of 

excluded compounds. The exclusion of this compound is consistent with the list of excluded 

compounds found in EPA’s definition of “Volatile organic compounds (VOC)” at 40 CFR 

51.100(s)(1).

Virginia amended the 21 additional terms to be consistent with the format of Commonwealth 

regulations as prescribed by the Commonwealth’s Registrar of Regulations. The amendments 

are administrative in nature and do not alter the meaning or intent of these defined terms. 

III. General Information Pertaining to 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 
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and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary

Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that 

protects from disclosure documents and information about the content of those documents that 

are the product of a voluntary environmental assessment. The Privilege Law does not extend to 

documents or information (1) that are generated or developed before the commencement of a 

voluntary environmental assessment; (2) that are prepared independently of the assessment 

process; (3) that demonstrate a clear, imminent and substantial danger to the public health or 

environment; or (4) that are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a 

legal opinion that states that the Privilege Law, Va. Code Sec. 10.1-1198, precludes granting a 

privilege to documents and information “required by law,” including documents and information 

“required by Federal law to maintain program delegation, authorization or approval,” since 

Virginia must “enforce Federally authorized environmental programs in a manner that is no less 

stringent than their Federal counterparts. . . .” The opinion concludes that “[r]egarding ' 10.1-

1198, therefore, documents or other information needed for civil or criminal enforcement under 

one of these programs could not be privileged because such documents and information are 

essential to pursuing enforcement in a manner required by Federal law to maintain program 

delegation, authorization or approval.” 

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with 

requirements imposed by Federal law,” any person making a voluntary disclosure of information 
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to a state agency regarding a violation of an environmental statute, regulation, permit, or 

administrative order is granted immunity from administrative or civil penalty. The Attorney

General's January 12, 1998 opinion states that the quoted language renders this statute 

inapplicable to enforcement of any Federally authorized programs, since “no immunity could be 

afforded from administrative, civil, or criminal penalties because granting such immunity would 

not be consistent with Federal law, which is one of the criteria for immunity.” 

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude 

the Commonwealth from enforcing its program consistent with the Federal requirements. In any

event, because EPA has also determined that a state audit privilege and immunity law can affect 

only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may

at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 

211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any

state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is 

likewise unaffected by this, or any, state audit privilege or immunity law.

IV. Final Action

EPA is approving the amendments to Virginia Regulation 9VAC5-10-20 (Terms defined) as a 

revision to the Virginia State Implementation Plan. EPA is publishing this rule without prior 

proposal because the Agency views this as a noncontroversial amendment and anticipates no 

adverse comment.
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 However, in the AProposed 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 [Insert date 60 days from date of publication in 

the Federal Register] without further notice unless EPA receives adverse comment by [Insert date

30 days from date of publication in the Federal Register]. 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. 

V. Statutory and Executive Order Reviews 

A. General Requirements

Under the Clean Air Act, the Administrator is required to approve a SIP submission that 

complies with the provisions of the Act and applicable 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 Clean Air Act. 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.);
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 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 (Public Law 

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 Clean Air Act; 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.
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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 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 [Insert date 60 days from

date of publication of this document in the Federal Register]. 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. Parties with 

objections to this direct final rule are encouraged to file a comment in response to the parallel 

notice of proposed rulemaking for this action published in the proposed rules section of today's 

Federal Register, rather than file an immediate petition for judicial review of this direct final rule, 

so that EPA can withdraw this direct final rule and address the comment in the proposed
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rulemaking. This action to approve 22 amended terms in Virginia’s General Definitions 

regulation as a revision to the Virginia SIP 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, Incorporation by reference, 

Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 

recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

February 1, 2010 /s/ William C. Early, Acting

_________________ __________________________

Dated: Shawn M. Garvin,

 Regional Administrator,

 Region III.
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40 CFR part 52 is amended as follows: 

PART 52 - [AMENDED] 

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

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

Subpart VV - Virginia

2. In § 52.2420, the table in paragraph (c) is amended by revising the sixth entry for 5-10-20 to 

read as follows:

State citation 

 

Title/subject State 

effective 

date

EPA 

approval 

date

Explanation [former 

SIP citation]

9 VAC 5

Chapter 10

General Definitions [Part I]

*******

5-10-20 Terms Defined 4/2/09 [Insert Federal 

Register 

publication 

date] [Insert 

page number 

where the 

document 

begins]

Revised definitions of

Ambient air quality 

standard, Criteria 

pollutant, Dispersion 

technique, Emission 

limitation, Emission 

standard, Excessive 

concentration, Federal 

Clean Air Act, Federally 

enforceable, Good 

engineering practice, 

Initial emission test, Initial 

performance test, Public 

hearing, Reference 

method, Regulations for 

the Control and Abatement 

of Air Pollution, Reid 

vapor pressure, Run, 

Standard of performance, 

State enforceable, These 

regulations, True vapor 

pressure, Vapor pressure, 

and Volatile organic 

compound.

*******

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