ENVIRONMENTAL PROTECTION AGENCY S

40 CFR Part 52

[EPA-R03-OAR-2010-0009; FRL

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 [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 Registerl. If EPA receives such comments, it will publish a

timely withdrawal ofthe 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-

- -

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, 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 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-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 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 “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

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

withany diskorCD-ROM ybsbniit:IfEFA

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 ofspecial

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: Maria A. Pino, (215)814-2181, or by e-mail

at pino.mariaepa.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 ofthe Virginia Administrative 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 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.

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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 ofthe 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 non-reference test data, i.e., any creditable evidence, can

be used jn 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 app dfhhaigestrPgth theVirginia SIP,

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

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with § 10.1-1307.3.B ofthe 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

protectsiromdisclosureilocuments and fonnatiomaboutthecontentofthosedocurnents 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 ofthe assessment

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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 ofthese 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

—

G-eneraPs—January -1-2,—i 998-opinion-states-that thequotedlanguage-rendersthis 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.”

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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 ofthe state plan, independently of any

state enforcement effort. In addition, citizen enforcement under section 304 ofthe 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 EPA-approved 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

Register;EPA is publishing aseparatedncurnentthatwilLserve

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 nublication in

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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. Please note that if EPA receives adverse comment on an amendment, paragraph, or section

of this rule and ifthat provision may be severed from the remainder ofthe rule, EPA may adopt

as final those provisions ofthe 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 mecting 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);

• dsnot i atfiPfoimation olltior burdeit under thepmvisionsfthePaperwork

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.);

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•. 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 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);

o 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 ofthe 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 ofRepresentatives, and the Comptroller General ofthe 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) ofthe Clean Air Act, petitions for judicial review ofthis action must be

filed in the United States Court of Appeals for the appropriate circuit by [Insert date 60 days from

date of publication ofthis document in the Federal Register]. Filing a petition for

reconsideration by the Administrator ofthis final rule does not affect the finality ofthis action for

the purposes ofjudicial review nor does it extend the time within which a petition for judicial

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 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 ofthis 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, 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.

FEB 01 2010

Dated: 2Shawn M. Garvin,

Regional Administrat,P(

Region III.

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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 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

paragraph A. 3.

* * * * * * *

9 VAC 5 New and Modified Stationary Sources

Chapter 50

12
State citation Title/subject State EPA Explanation

effective approval [former SIP

date date citation]

Part

I : :

SpecialProvisions

5-50-20 Compliance 12/12/07 [Insert Federal Revisions to

Register paragraphA.3. publication date]

[Insert page

number where

the document

begins]

* * * * * * *

* * * * *

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