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 : Enviro nmental Protection Agency (EPA). ACTION : Direct final rule. SUMMARY : EPA is taking direct final action to approve revisions to the Virginia State Implementation Plan (SI P). 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 [ In sert date 60 day s after publication in the Feder al Register] without further notice, unless EPA receives adverse written comment by [ In sert date 30 day s after publication in the Federal Register] . I f EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federa l Register and inform the public that the rule will not take effect.

ADDRESSES: Submit y our comments, identified by Docket I D Number EPA - R03 - OAR 2009 - 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 3AP 00 , U.S. Environmental Protection Agency , Region I II, 1650 Arch Street,2

Philadelphia, P ennsylvania 19103. D. Hand Delivery : At the previously
- listed EPA Region I II 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.

Ins tructions: Direct y our comments to Docket I D 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 infor

mation provided, unless the comment includes information claimed to be Confidential Business In formation (CBI ) or other information whose disclosure is restricted by statute. Do not submit information that y ou consider to be CBIor otherwise protected thro ugh www.regulations.gov or e - mail. The www.regulations.gov website is an A anony mous access @ sy stem, which means EPA will not know y our identity or contact information unless y ou provide it in the body of y our comment. I f y ou send an e
- mail comment direct ly to EPA without going through www.regulations.gov , y our 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 I nternet. I f y ou submit an electronic comment, EPA re commends that y ou include y our name and other contact information in the body

of y our comment and with any disk or CD
- ROM y ou submit. I f EPA cannot read y our comment due to technical difficulties and cannot contact you for clarification, EPA may not be ab le to consider y our comment. Electronic files should avoid the use of special characters, any

form of encry

ption, and be free of any

defects or viruses.3

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 copy righted 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 I II, 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
- 2 108 , 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 Stat e I mplementation Plan (SI P). The SI P revision consists of amendments to 22 definitions listed in 9VAC5 Chapter 10 (General Definitions), Regulation 5
- 10
- 20 (Terms defined). The amended terms are: A mbient air quality

standard, C riteria pollutant, D ispersi on technique, E mission limitation, E mission standard, E xcessive concentration, F ederal Clean Air Act, F ederally enforceable, G ood engineering practice, Initial emission test, Initial performance test, P ublic hearing, R eference4

method, Regulations for the C ontrol and Abatement of Air Pollution, Reid vapor pressure, R un, S tandard of performance, S tate enforceable, T hese regulations, T rue vapor pressure, V apor pressure, and V olatile organic compound
. I I. S ummary 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 compound s 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 f rom the Commonwealth of Virgin i a In1995, 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 t o a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth5

and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege L aw, Va. Code Sec. 10.1
- 1198, pro vides 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 L aw does not extend to documents or information (1) that are generate d 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 ar e 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 L aw, Va. Code Sec. 10.1
- 1198, precludes granting a privilege to documents and information “r equire d by law, ” i ncluding 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 Fe deral 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 a re essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval. ” Virginia's I mmunity

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 information6

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 Attorn ey 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 gran ting 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 consist ent with the Federal requirements. Inany 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 CA A is likewise unaffected by

this, or any , state audit privilege or immunity law.

I V . Final Action EPA is approving the amendments to Virginia Regulation 9VAC5
- 10
- 20 (Terms defined) as a revision to the Virginia State I mplementation Plan. E PA is publishin g this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment
.7

However, in the A Proposed Rules @ section of today = s Federal Register , EPA is publishing a separate document that will se rve as the proposal to approve the SI P revision if adverse comments are filed. This rule will be effective on [ In sert date 60 day s from date of publication in the Federal Register ] without further notice unless EPA receives adverse comment by [ In sert date 30 day s from date of publication in the Federal Register ]. I f 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 s ubsequent 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 SI P 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, i n reviewing SI P 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 bey ond 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 Paperwo rk Reduction Act (44 U.S.C. 3501 et seq
. );8

 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 significan tly or uniquely

affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public L aw 104
- 4) ;
 d oes not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999 );

 is not an economically signif icant 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 addres s, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

Inaddition, this rule does not have tribal implications as specifie d by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SI P 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.9

B. Su bmission 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, th e 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 day s 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 [ In sert date 60 day s 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 noti ce 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 proposed10

rulemaking. This action to approve 22 amended terms in Virginia’s General Definitions regulation as a revision to the Virginia SI P 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, In corporation by reference, In tergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Su lfur oxides, Volatile organic compounds.
February 1, 2010 /s/ William C. Early , Acting

_________________ __________________________ Dated: Shawn M. Garvin, Regional Administrator, Region I II.11

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. 7 401 et seq . Subpart VV
- Virginia 2. In § 52.2420, the table in paragraph (c) is amended by r evising the sixth entr y for 5
- 10
- 20 to read as follows: State citation Title/subject State ef fe ctive date EPA

approval date Explanation [former

SIP citati on] 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 o f

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 t est, 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. *******
* * * * *