Federal Register / Vol. 75, No. 36 / Wednesday, February 24, 2010 / Rules and Regulations 8249 

Register on December 16, 2009 (DIN: 

20091216–IR–326090221ACA). 

(O) Corrections to Indiana 

Administrative Code Title 326: Air 

Pollution Control Board, Article 8: 

Volatile Organic Compound Rules, Rule 

18: Synthetic Organic Chemical 

Manufacturing Industry Air Oxidation, 

Distillation, and Reactor Processes, filed 

with the Publisher of the Indiana 

Register on November 19, 2009, and 

became effective on January 3, 2010. 

Published in the Indiana Register on 

December 16, 2009 (DIN: 20091216–IR– 

326090222ACA). 

(P) Corrections to Indiana 

Administrative Code Title 326: Air 

Pollution Control Board, Article 8: 

Volatile Organic Compound Rules, Rule 

19: Control of Volatile Organic 

Compound Emissions from Process 

Vents in Batch Operations, filed with 

the Publisher of the Indiana Register on 

November 19, 2009, and became 

effective on January 3, 2010. Published 

in the Indiana Register on December 16, 

2009 (DIN: 20091216–IR– 

326090222ACA). 

(Q) Corrections to Indiana 

Administrative Code Title 326: Air 

Pollution Control Board, Article 8: 

Volatile Organic Compound Rules, Rule 

20: Industrial Wastewater, filed with the 

Publisher of the Indiana Register on 

November 19, 2009, and became 

effective on January 3, 2010. Published 

in the Indiana Register on December 16, 

2009 (DIN: 20091216–IR– 

326090222ACA). 

(R) Corrections to Indiana 

Administrative Code Title 326: Air 

Pollution Control Board, Article 8: 

Volatile Organic Compound Rules, Rule 

21: Aerospace Manufacturing and 

Rework Operations, filed with the 

Publisher of the Indiana Register on 

November 19, 2009, and became 

effective on January 3, 2009. Published 

in the Indiana Register on December 16, 

2009 (DIN: 20091216–IR– 

326090222ACA). 

(S) Corrections to Indiana 

Administrative Code Title 326: Air 

Pollution Control Board, Article 8: 

Volatile Organic Compound Rules, Rule 

22: Miscellaneous Industrial Adhesives, 

filed with the Publisher of the Indiana 

Register on November 18, 2009, and 

became effective on January 2, 2010. 

Published in the Indiana Register on 

December 16, 2009 (DIN: 20091216–IR– 

326090221ACA). 

[FR Doc. 2010–3523 Filed 2–23–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2010–0009; FRL–9115–9] 

Approval and Promulgation of Air 

Quality Implementation Plans; Virginia; 

Opacity Source Surveillance Methods 

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 update methods for 

determining compliance with opacity 

standards for existing, new and 

modified stationary sources. EPA is 

approving these revisions in accordance 

with the requirements of the Clean Air 

Act (CAA). 

DATES: This rule is effective on April 26, 

2010 without further notice, unless EPA 

receives adverse written comment by 

March 26, 2010. 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–OAR–2010–0009 by one of the 

following methods: 

A. http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

B. E-mail: 

fernandez.cristina@epa.gov. 

C. Mail: EPA–R03–OAR–2010–0009, 

Cristina Fernandez, Associate Director, 

Office of Air Program Planning, 

Mailcode 3AP30, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. 

D. Hand Delivery: At the previouslylisted 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–2010– 

0009. EPA’s policy is that all comments 

received will be included in the public 

docket without change, and may be 

made available online at http:// 

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 http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous 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 http:// 

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. 

Docket: All documents in the 

electronic docket are listed in the 

http://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 http:// 

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: 

Maria A. Pino, (215) 814–2181, or by email at pino.maria@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. 

I. Background 

On August 25, 2008, the 

Commonwealth of Virginia submitted a 

formal revision to its SIP. The SIP 

revision consists of amendments to Title 

9 of the Virginia Administrative Code 

(VAC) to update methods for 

determining compliance with opacity 

standards for existing, new, and 

modified stationary sources. 


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8250 Federal Register / Vol. 75, No. 36 / Wednesday, February 24, 2010 / Rules and Regulations 

Amendments to regulations 9VAC5–40– 

20 and 9VAC5–50–20 allow the use of 

continuous opacity monitoring system 

(COMS) data to determine compliance 

with opacity standards. The 

amendments also allow the use of other 

methods approved by EPA. 

II. Summary of SIP Revision 

These revisions update regulations 

9VAC5–40–20 and 9VAC5–50–20 to 

allow the use of data from a ‘‘continuous 

monitoring by transmissometer’’ or 

COMS, provided that the devise meets 

Performance Standard 1—Specifications 

and Test Procedures for Continuous 

Opacity Monitoring Systems in 

Stationary Sources in Appendix B to 40 

CFR part 60. The revisions also require 

that the devise be properly maintained 

and prohibit any alteration of the 

resulting data. Previously, compliance 

with opacity standards was determined 

by EPA Method 9, which requires a 

certified smoke reader to observe the 

emissions leaving the stack during 

daylight hours. EPA Method 9 had been 

the only Federally acceptable method to 

determine compliance with opacity 

standards and visibility requirements. 

However, on February 24, 1997, EPA 

promulgated its Credible Evidence 

Revisions, which clarified that nonreference test data, i.e., any creditable 

evidence, can be used in enforcement 

actions and for compliance 

determinations under the Clean Air Act 

(62 FR 8314). Thus, Method 9 is not the 

exclusive means to determining 

compliance with opacity standards, and 

the use of data from COMS is deemed 

acceptable. This change strengthens the 

Virginia SIP by allowing the use of 

COMS data to determine compliance 

with opacity standards, which will 

make compliance determinations easier. 

The revisions also limit the use of 

alternative compliance methods to only 

methods which EPA has approved. 

These changes strengthen the Virginia 

SIP, which had previously allowed 

alternative methods, but did not specify 

that those methods must be approved by 

EPA. 

Virginia made these revisions to make 

regulations 9VAC5–40–20 and 9VAC5– 

50–20 consistent with § 10.1–1307.3.B 

of the Code of Virginia, which reads as 

follows: 

‘‘The Executive Director or his duly 

authorized representative may pursue 

enforcement action for a violation of opacity 

requirements or limits based on (i) visual 

observations conducted pursuant to methods 

approved by the U.S. Environmental 

Protection Agency, (ii) data from certified 

continuous opacity monitors, or (iii) other 

methods approved by the U.S. Environmental 

Protection Agency.’’ 

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 

§ 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 

any, State audit privilege or immunity 

law. 

IV. Final Action 

EPA is approving revisions to the 

Virginia SIP that amend regulations 

9VAC5–40–20 and 9VAC5–50–20 to 

update methods for determining 

compliance with opacity standards for 

existing, new, and modified stationary 

sources. The amendments allow the use 

of data from COMS or other EPAapproved methods to determine 

compliance with opacity standards. 

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 ‘‘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 April 26, 2010 without 

further notice unless EPA receives 

adverse comment by March 26, 2010. 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 


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Federal Register / Vol. 75, No. 36 / Wednesday, February 24, 2010 / Rules and Regulations 8251 

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 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.); 

• 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 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. 

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 April 26, 2010. 

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 rulemaking. This action, 

which revises the Virginia SIP to update 

methods for determining compliance 

with opacity standards for existing, new 

and modified stationary sources, 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, Nitrogen dioxide, 

Particulate matter, Reporting and 

recordkeeping requirements, Sulfur 

oxides. 

Dated: February 1, 2010. 

W.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 

(c) is amended by revising the entries 

for Chapter 40, Section 5–40–20 and 

Chapter 50, Section 5–50–20 to read as 

follows: 

§ 52.2420 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES

State citation Title/subject State effective 

date EPA approval date Explanation (former SIP citation) 

* * * * * * * 

9 VAC 5 Chapter 40 Existing Stationary Sources 


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8252 Federal Register / Vol. 75, No. 36 / Wednesday, February 24, 2010 / Rules and Regulations 

EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES—Continued 

State citation Title/subject State effective 

date EPA approval date Explanation (former SIP citation) 

* * * * * * * 

Part I Special Provisions 

* * * * * * * 

5–40–20 ........... Compliance ...... 12/12/07 02/24/10 [Insert page number where the 

document begins].

Revisions to paragraph A.3. 

* * * * * * * 

9 VAC 5 Chapter 50 New and Modified Stationary Sources 

* * * * * * * 

Part I Special Provisions 

* * * * * * * 

5–50–20 ........... Compliance ...... 12/12/07 02/24/10 [Insert page number where the 

document begins].

Revisions to paragraph A.3. 

* * * * * * * 

* * * * * 

[FR Doc. 2010–3512 Filed 2–23–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 180 

[EPA–HQ–OPP–2008–0529; FRL–8812–1] 

Laminarin; Exemption from the 

Requirement of a Tolerance 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This regulation establishes an 

exemption from the requirement of a 

tolerance for residues of laminarin in or 

on all food commodities when applied 

preharvest as a biochemical pesticide to 

stimulate natural defense mechanisms 

in plants. Laboratoires Goe ̈mar SA c/o 

SciReg, Inc. submitted a petition to EPA 

under the Federal Food, Drug, and 

Cosmetic Act (FFDCA), requesting an 

exemption from the requirement of a 

tolerance. This regulation eliminates the 

need to establish a maximum 

permissible level for residues of 

laminarin. 

DATES: This regulation is effective 

February 24, 2010. Objections and 

requests for hearings must be received 

on or before April 26, 2010, and must 

be filed in accordance with the 

instructions provided in 40 CFR part 

178 (see also Unit I.C. of the 

SUPPLEMENTARY INFORMATION). 

ADDRESSES: EPA has established a 

docket for this action under docket 

identification (ID) number EPA–HQ– 

OPP–2008–0529. All documents in the 

docket are listed in the docket index 

available at http://www.regulations.gov. 

Although listed in the index, some 

information is not publicly available, 

e.g., 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 in the electronic docket at 

http://www.regulations.gov, or, if only 

available in hard copy, at the OPP 

Regulatory Public Docket in Rm. S– 

4400, One Potomac Yard (South Bldg.), 

2777 S. Crystal Dr., Arlington, VA. The 

Docket Facility is open from 8:30 a.m. 

to 4 p.m., Monday through Friday, 

excluding legal holidays. The Docket 

Facility telephone number is (703) 305– 

5805. 

FOR FURTHER INFORMATION CONTACT: 

Chris Pfeifer, Biopesticides and 

Pollution Prevention Division (7511P), 

Environmental Protection Agency, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460–0001; telephone number: 

(703) 308–0031; e-mail address: 

pfeifer.chris@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this Action Apply to Me? 

You may be potentially affected by 

this action if you are an agricultural 

producer, food manufacturer, or 

pesticide manufacturer. Potentially 

affected entities may include, but are 

not limited to: 

• Crop production (NAICS code 111). 

• Animal production (NAICS code 

112). 

• Food manufacturing (NAICS code 

311). 

• Pesticide manufacturing (NAICS 

code 32532). 

This listing is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

affected by this action. Other types of 

entities not listed in this unit could also 

be affected. The North American 

Industrial Classification System 

(NAICS) codes have been provided to 

assist you and others in determining 

whether this action might apply to 

certain entities. If you have any 

questions regarding the applicability of 

this action to a particular entity, consult 

the person listed under FOR FURTHER

INFORMATION CONTACT. 

B. How Can I Get Electronic Access to 

Other Related Information? 

You may access a frequently updated 

electronic version of 40 CFR part 180 

through the Government Printing 

Office’s e-CFR site at http:// 

www.gpoaccess.gov/ecfr. 


cprice-sewell on DSK2BSOYB1PROD with RULES