[Federal Register Volume 74, Number 52 (Thursday, March 19, 2009)]
[Rules and Regulations]
[Pages 11661-11664]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-5822]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2007-0200; FRL-8773-1]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Amendments to the Open Burning Regulation

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the Commonwealth of Virginia. This SIP revision pertains 
to the amendments of Virginia's open burning regulation. EPA is 
approving this SIP revision in accordance with the Clean Air Act (CAA).

DATES: Effective Date: This final rule is effective on April 20, 2009.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2007-0200. All documents in the docket are listed in 
the http://www.regulations.gov Web site. Although listed in the 
electronic docket, some information is not publicly available, i.e., 
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 either electronically through http://www.regulations.gov or in hard copy for public inspection 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 
Virginia Department of Environmental Quality, 629 East Main Street, 
Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182, or by e-
mail at <a href="/cdn-cgi/l/email-protection#cfbebaa6a1bba0e1bda0bcaa8faabfaee1a8a0b9"><span class="__cf_email__" data-cfemail="f584809c9b819adb879a8690b5908594db929a83">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background

    On June 7, 2007 (72 FR 31493), EPA published a notice of proposed 
rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed 
approval of the amendments to Virginia's open burning regulation (9 VAC 
5, Chapter 40, Part II, Article 40, Sections 5-40-5600 through 5-40-
5630). The formal SIP revision was submitted by the Virginia Department 
of Environmental Quality (VADEQ) on February 5, 2007. The provisions of 
Virginia's open burning regulation and the rationale for EPA's proposed 
action are explained in the NPR and will not be restated here. On July 
9, 2007, EPA received comments from VADEQ on the June 7, 2007 NPR. The 
comments state that they are not to be considered adverse to EPA's 
proposed action; rather, VADEQ requests that EPA revise the preamble to 
the rule where the preamble is arguably inconsistent with Virginia's 
submittal. A summary of those comments and EPA's responses are provided 
in Section II of this document.

II. Summary of Public Comments and EPA Responses

    Comment: The commenter requests to correct the following under the 
``Summary of SIP Revision,'' the list of volatile organic compound 
(VOC) emission control areas:
    1. Western Virginia Emissions Control Area: Add ``Roanoke City;'' 
change ``Salem County'' to ``Salem City;'' and change ``Winchester 
County'' to ``Winchester City.''
    2. Hampton Roads Emissions Control Area: Add ``Gloucester County'' 
and ``Isle of Wight County'' and change ``Suffolk County'' to Suffolk 
City.''
    3. Richmond Emissions Control Area: Add ``Prince George County'' 
and ``Petersburg City.''
    Response: EPA acknowledges that the June 7, 2007 proposal 
inadvertently omitted the above-referenced geographic areas, which were 
included in Virginia's submittal.

    Comment: The commenter requests that the seasonal restrictions in 9 
VAC 5-40-5630(A)(8) and 9 VAC 5-40-5630(A)(10) as applying in the 
County of Gloucester and the County of Isle of Wight not become part of 
Virginia SIP until 2009.
    Response: The effective date of this approval is 2009; therefore 
this comment is moot.

    Comment: The commenter requests to remove the terms ``landfill,'' 
``local

[[Page 11662]]

landfill'' and ``salvage operation'' from the list of definitions 
affected by this SIP approval, since no changes were made to these 
definitions. The commenter requests to add the term ``junkyard'' in the 
list of definitions, since a change was made to this definition.
    Response: EPA agrees that Virginia's submittal did not change the 
definitions of the terms ``landfill,'' ``local landfill'' and ``salvage 
operation,'' which were inadvertently included in the June 7, 2007 
notice as having been changed. EPA also agrees that Virginia added the 
term ``junkyard'' although this term was inadvertently omitted from the 
list of changes in the SIP Revision Summary of the notice.

    Comment: The commenter requests to replace the following statement 
contained in the preamble: ``This SIP revision provides for the control 
of open burning and use of special incineration devices for destruction 
of rubber tires, asphaltic materials, crankcase oil, impregnated wood 
or other rubber or petroleum based materials except when conducting 
bona fide fire fighting instruction at fire fighting training schools 
having permanent facilities. This SIP revision also provides for the 
control of open burning and use of special incineration device for the 
destruction of hazardous waste or containers for such materials. In 
addition, this SIP revision provides for the control of open burning 
and use of special incineration device for the purpose of salvage 
operation or for the destruction of commercial/industrial waste.''
    The commenter suggests replacing that statement with: ``The 
destruction of rubber tires, asphaltic materials, crankcase oil, 
impregnated wood or other rubber or petroleum based materials is 
prohibited by open burning or the use of special incineration devices 
except when conducting bona fide fire fighting instruction at 
firefighting training schools having permanent facilities. Open burning 
or the use of special incinerator devices is also prohibited for the 
destruction of hazardous waste or containers for such materials as well 
as for salvage operations or for the destruction of commercial/
industrial waste.''
    Response: EPA agrees that VADEQ's suggested replacement statement 
is an accurate synopsis of the rule, and should replace EPA's statement 
from the rule proposal.

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 Sec.  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 the amendments to the open burning regulation (9 
VAC 5, Chapter 40, Part II, Article 40, Sections 5-40-5600 through 5-
40-5630) as a revision to the Virginia SIP submitted on February 5, 
2007.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA 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 CAA. 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:
    <bullet> Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under

[[Page 11663]]

Executive Order 12866 (58 FR 51735, October 4, 1993);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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 CAA; and
    <bullet> 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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by May 18, 2009. 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.
    This action, approving the amendments of Virginia's open burning 
regulation, 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, Incorporation by 
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    January 22, 2009.
William T. Wisniewski,
Acting Regional Administrator, Region III.

0
40 CFR Part 52 is amended as follows:

PART 52--[AMENDED]

0
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

0
2. In Sec.  52.2420, the table in paragraph (c) is amended by revising 
the entries for 9 VAC 5, Chapter 40, Part II, Article 40, Sections 5-
40-5600 through 5-40-5630 to read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

                                 EPA-Approved Virginia Regulations and Statutes
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                                                      State effective                      Explanation  [former
    State citation (9 VAC 5)        Title/subject          date        EPA approval date       SIP citation]
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                                                  * * * * * * *
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                                     Chapter 40 Existing Stationary Sources
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                                                  * * * * * * *
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                                           Part II Emission Standards
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                                                  * * * * * * *
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                                       Article 40 Open Burning (Rule 4-40)
----------------------------------------------------------------------------------------------------------------
5-40-5600......................  Applicability.....          10/18/06  March 19, 2009     Provisions of Article
                                                                        [Insert page       40 expanded to new
                                                                        number where the   localities in the
                                                                        document begins].  emissions control
                                                                                           areas.
5-40-5610......................  Definitions.......          10/18/06  March 19, 2009     Terms added: ``Air
                                                                        [Insert page       curtain
                                                                        number where the   incinerator,''
                                                                        document begins].  ``Clean lumber,''
                                                                                           ``Wood waste,'' and
                                                                                           ``Yard waste.''

[[Page 11664]]

 
                                                     ................                     Terms revised: ``Clean
                                                                                           burning waste,''
                                                                                           ``Clean wood,''
                                                                                           ``Commercial waste,''
                                                                                           ``Construction
                                                                                           waste,'' ``Debris
                                                                                           waste,'' ``Demolition
                                                                                           waste,'' ``Garbage,''
                                                                                           ``Hazardous waste,''
                                                                                           ``Household waste,''
                                                                                           ``Industrial waste,''
                                                                                           ``Junkyard,'' ``Open
                                                                                           burning,'' ``Open pit
                                                                                           incinerator,''
                                                                                           ``Refuse,''
                                                                                           ``Sanitary
                                                                                           landfill,'' and
                                                                                           ``Special
                                                                                           incineration
                                                                                           device.''
5-40-5620......................  Open burning                10/18/06  March 19, 2009
                                  prohibitions.                         [Insert page
                                                                        number where the
                                                                        document begins].
5-40-5630......................  Permissible open            10/18/06  March 19, 2009
                                  burning.                              [Insert page
                                                                        number where the
                                                                        document begins].
 
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[FR Doc. E9-5822 Filed 3-18-09; 8:45 am]
BILLING CODE 6560-50-P


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