ENVIRONMENTAL PROTECTION AGENCY
S 40 CFR Part 52 [EPA-R03-OAR-2010-0009; FRL Approval and Promulgation ofAir 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 ImplementationPlan (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 ofthe Clean Air Act (CAA). DATES: This rule is effective on [Insert date 60 days afterpublication in the Federal Register] without further notice, unless EPA receives adverse written comment by [Insert date 30 days after publication in the Federal Registerl. IfEPA receives such comments, itwill publish a timely withdrawal ofthe direct final rule in the Federal Register and inform the public thatthe rule will not take effect.
ADDRESSES: Submityour comments, identified by Docket ID NumberEPA-R03-OAR-

- - A. www.regulations.gov. Follow the on-line instructions for submitting comments. B.’ E-mail: fernandez.cristinaepa.gov C. Mail: EPA-R03-OAR-2010-0009, CristinaFernandez, Associate Director, Office ofAirProgram Planning, Mailcode 3AP30, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. D. Hand Delivery: Atthe previously-listed EPA Region III address. Such deliveries are only accepted during the Docket’s normal hours ofoperation, and special arrangements shouldbe made for deliveries ofboxed 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 www.regulations.gov, including any personal information provided, unless the commentincludes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information thatyou considerto be CBI or otherwise protectedthrough www.regulations.gov or e-mail. The www.regulations.gov website is an “anonymous access” system, which means EPA will not know your identity or contact informationunless you provide it inthe body ofyour comment. Ifyou 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 commentthat is placed in the public docket and made available on the Internet. Ifyou submit an electronic comment, EPA recommends thatyou include your name and other contact withany diskorCD-ROM ybsbniit:IfEFA cannotreadyour comment due to technical difficulties and cannot contactyou for clarification, EPA may notbe able to consideryour comment. Electronic files should avoid the use ofspecial characters, any form ofencryption, and be free ofany defects or viruses.

2Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is notpublicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is notplaced 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 ofEnvironmental Quality, 629 East Main Street, Richmond, Virginia 23219. FOR FURTHER INFORMATION CONTACT: MariaA. Pino, (215)814-2181, orby e-mail atpino.mariaepa.gov.
SUPPLEMENTARY INFORMATION: Throughoutthis document, whenever “we,” “us,” or “our” is used, we mean EPA.
I. Background On August 25, 2008, the Commonwealth ofVirginia submitted a formal revisionto its SIP. The SIP revision consists ofamendments to Title 9 ofthe VirginiaAdministrative Code (VAC) to -update-methods for-determining compliance with opacitystandards for existing,new, and modified stationary sources. Amendments to regulations 9VAC5-40-20 and 9VAC5-50-20 allow the use ofcontinuous opacity monitoring system (COMS) datato determine compliance with opacity standards. The amendments also allow the use ofother methods approved by EPA.
3II. Summary ofSIP Revision These revisions update regulations 9VAC5-40-20 and 9VAC5-50-20 to allow the use ofdata from a “continuous monitoring by transmissometer” or COMS, providedthatthe devise meets Performance Standard 1

- Specifications and TestProcedures 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 ofthe resulting data. Previously, compliance with opacity standards was determined by EPA Method 9, which requires a certified smoke readerto observe the emissions leaving the stack during daylighthours. EPA Method 9 had beenthe only federally acceptable methodto determine compliance with opacity standards and visibility requirements. However, on February 24, 1997, EPA promulgated its Credible Evidence Revisions, which clarified that non-reference test data, i.e., any creditable evidence, can be usedjn enforcement actions and for compliance determinations underthe Clean Air Act (62 FR 8314). Thus, Method 9 is not the exclusive means to determining compliance with opacity standards, andthe use ofdata from COMS is deemed acceptable. This change strengthens the Virginia SIP by allowing the use ofCOMS datato determine compliance with opacity standards, which will make compliance determinations easier.
The revisions also limitthe use ofalternative compliance methods to only methods which EPA has app dfhhaigestrPgth theVirginia SIP, alternative methods, but did not specify thatthose methods mustbe approved by EPA. Virginiamade these revisions to make regulations 9VAC5-40-20 and 9VAC5-50-20 consistent

4with 

## § 10.1-1307.3.B ofthe Code ofVirginia, which reads as follows: “The Executive Director orhis duly authorizedrepresentative may pursue enforcement action for aviolation ofopacity requirements or limits based on (i) visual observations conducted pursuantto methods approved by the U.S. Environmental Protection Agency, (ii) data from certified continuous opacity monitors, or (iii) other methods approvedby the U.S. Environmental Protection Agency.”
III. General Information Pertaining to SIP Submittals from the Commonwealth of Virginia In 1995, Virginia adopted legislationthatprovides, subjectto certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by aregulated entity. The legislation further addresses the relative burden ofproofforparties either asserting the privilege or seeking disclosure ofdocuments for which the privilege is claimed. Virginia’s legislation also provides, subjectto certain conditions, for apenalty waiver for violations ofenvironmental laws when aregulated entity discovers suchviolations pursuantto a voluntary compliance evaluation and voluntarily discloses suchviolations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia’s Voluntary Environmental AssessmentPrivilege Law, Va. Code Sec. 10.1-1198, provides aprivilege that protectsiromdisclosureilocuments and fonnatiomaboutthecontentofthosedocurnents that are the product ofa voluntary environmental assessment. The Privilege Law does not extendto documents or information (1) that are generated or developed before the commencement ofa voluntary environmental assessment; (2) that are prepared independently ofthe assessment

5process; (3) that demonstrate a clear, imminent and substantial dangerto the public health or environment; or (4) that are required by law.
On January 12, 1998, the Commonwealth ofVirginia Office ofthe Attorney General provided a legal opinionthat states thatthe 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 maintainprogram delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a mannerthat is no less stringentthan their Federal counterparts.

. . .“ The opinion concludes that “[r]egarding 

### § 10.1- 1198, therefore, documents or other information needed for civil or criminal enforcementunder one ofthese programs could notbe privilegedbecause such documents and information are essential to pursuing enforcement in a mannerrequiredby Federal law to maintainprogram delegation, authorization or approval.” Virginia’s Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistentwith requirements imposed by Federal law,” any person making avoluntary disclosure ofinformation to a state agency regarding aviolation ofan environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney

— G-eneraPs—January -1-2,—i998-opinion-states-that thequotedlanguage-rendersthis statute— inapplicable to enforcement ofany Federally authorizedprograms, since “no immunity couldbe afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one ofthe criteria forimmunity.”

6Therefore, EPA has determined that Virginia’s Privilege and Immunity statutes will notpreclude the Commonwealth from enforcing its program consistent withthe Federal requirements. In any event, because EPA has also determined that a state auditprivilege and immunity law can affect only state enforcement and cannothave any impact on Federal enforcement authorities, EPA may at any time invoke its authority underthe CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements orprohibitions ofthe state plan, independently ofany state enforcement effort. In addition, citizen enforcementunder section 304 ofthe CAA is likewise unaffectedby this, or any, state auditprivilege 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 ofdatafrom COMS or other EPA-approved methods to determine compliance with opacity standards.
EPA is publishing this rule withoutpriOrproposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Register;EPAispublishing aseparatedncurnentthatwilLserve as the proposal to approve the SIP revision ifadverse comments are filed. This rule will be effective on [Insert date 60 days from date ofpublication in the Federal Register] without further notice unless EPA receives adverse commentby [Insert date 30 days from date ofnublication in

7the Federal Register]. IfEPA receives adverse comment, EPA will publish atimely withdrawal in the Federal Register informing the public thatthe rule will nottake effect. EPA will address all public comments in a subsequent final rule based onthe proposed rule. EPA will not institute a second commentperiod on this action. Any parties interested in commenting must do so atthis time. Please note that ifEPA receives adverse comment on an amendment, paragraph, or section ofthis rule and ifthatprovision may be severed fromthe remainder ofthe rule, EPA may adopt as final those provisions ofthe rule that are notthe subject ofan adverse comment.
V. Statutory and Executive Order Reviews A. General Requirements Underthe Clean Air Act, the Administrator is required to approve a SIP submissionthat complies with the provisions ofthe 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 thatthey meetthe criteria ofthe Clean AirAct. Accordingly, this action merely approves state law as mecting Federal requirements and does not impose additional requirements beyond those imposed by state law. Forthatreason, this action:

• is not a “significantregulatory action” subjectto reviewby the Office ofManagement and Budgetunder Executive Order 12866 (58 FR 51735, October 4, 1993);

• dsnot i atfiPfoimation olltior burdeitunderthepmvisions fthePaperwork Reduction Act (44 U.S.C. 3501 et seq.);

• is certified as nothaving a significant economic impact on a substantial number ofsmall entities underthe Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

8•. 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);

o does not have Federalism implications as specified in Executive Order 13 132 (64 FR 43255, Au.gust 10, 1999);

• is not an economically significantregulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• is not a significantregulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

o is not subjectto requirements ofSection 12(d) ofthe National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application ofthose requirements would be inconsistentwith the CleanAirAct; and

• does notprovide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, underExecutive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does nothave 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 ontribal governments orpreempttribal law.

9B. Submission to Congress and the Comptroller General The Congressional Review Act, 5 U.S.C. 801 et seq., as addedby the Small Business Regulatory EnforcementFairness Act of 1996, generally provides thatbefore arule may take effect, the agencypromulgating the rule must submit arule report, which includes a copy ofthe rule, to each House ofthe Congress and to the Comptroller General ofthe United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthe rule in the Federal Register. A majorrule 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) ofthe Clean Air Act, petitions forjudicial review ofthis action mustbe filed in the United States Court ofAppeals for the appropriate circuitby [Insert date 60 days from date ofpublication ofthis document inthe Federal Register]. Filing apetition for reconsideration by the Administrator ofthis final rule does not affect the finality ofthis action for the purposes of judicial review nor does it extend the time within which apetition forjudicial review may be filed, and shall not postpone the effectiveness ofsuch rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice ofproposed rulemaking for this actionpublished in the proposed rules section oftoday’s Federal Register, rather than file an immediate petition forjudicial review ofthis direct final rule, so thatEPA can withdraw this direct final rule and address the comment in the proposed

10rulemaking. This action, which revises the Virginia SIP to update methods for determining compliance with opacity standards for existing, new and modified stationary sources, may notbe challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
List ofSubjects in 40 CFR Part 52 Environmental protection, Airpollution control, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides. 

### FEB 01 2010 Dated: 2 Shawn M. Garvin, Regional Administrat,P( Region III.

1140 CFR Part 52 is amended as follows: PART 52- [AMENDED] 1. The authority citation for 40 CFRpart 52 continues to read as follows: Authority: 42 U.S.C. 7401 et seq. SubpartVV

- 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 ofplan.

*** ** (c) * * * EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES

State citation Title/subject State EPA Explanation effective approval [former SIP date date citation]

* * * * * * * 9 VAC 5 Existing Stationary Sources Chapter 40 Part

# :: SpecialProvisions
5-40-20 Compliance 12/12/07 [Insert Federal Register publication date] [Insert page number where the document begins Revisions to paragraphA.3.

* * * * * * * 9 VAC 5 New and Modified Stationary Sources Chapter 50
12State citation Title/subject State EPA Explanation effective approval [former SIP date date citation] Part I : : SpecialProvisions
5-50-20 Compliance 12/12/07 [InsertFederal Revisions to Register paragraphA.3. publication date] [Insertpage number where the document begins]

* * * * * * *

* * * * *

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