11702 Federal Register / Vol. 74, No. 52 / Thursday, March 19, 2009 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2007–0287; FRL–8777–5] 

Approval and Promulgation of Air 

Quality Implementation Plans; Virginia; 

Northern Virginia Reasonably 

Available Control Technology Under 

the 8-Hour Ozone National Ambient Air 

Quality Standard 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

a State Implementation Plan (SIP) 

revision submitted by the 

Commonwealth of Virginia. This SIP 

revision consists of a demonstration that 

the Virginia portion (Cities of 

Alexandria, Fairfax, Falls Church, 

Manassas, and Manassas Park; Counties 

of Arlington, Fairfax, Loudoun, and 

Prince William) of the Washington, DCMD-VA area meets the requirements of 

reasonably available control technology 

(RACT) for oxides of nitrogen (NOX) and 

volatile organic compounds (VOCs) set 

forth by the Clean Air Act (CAA). This 

SIP revision demonstrates that all 

requirements for RACT are met either 

through: Certification that previously 

adopted RACT controls in Virginia’s SIP 

that were approved by EPA under the 1- 

hour ozone NAAQS are based on the 

currently available technically and 

economically feasible controls, and that 

they continue to represent RACT for the 

8-hour implementation purposes; a 

negative declaration demonstrating that 

no facilities exist in the Virginia portion 

of the Washington, DC-MD-VA area for 

certain control technology guideline 

(CTG) categories; and a new RACT 

determination for a specific source. This 

action is being taken under the CAA. 

DATES: Written comments must be 

received on or before April 20, 2009. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2007–0287 by one of the 

following methods: 

A. www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

B. E-mail: 

fernandez.cristina@epa.gov. 

C. Mail: EPA–R03–OAR–2007–0287, 

Cristina Fernandez, Chief, Air Quality 

Planning Branch, Mailcode 3AP21, 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–2007– 

0287. 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 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 www.regulations.gov, your email 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 

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: 

Gregory Becoat, (215) 814–2036, or by 

e-mail at becoat.gregory@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Ozone is formed in the atmosphere by 

photochemical reactions between VOC, 

NOX, and carbon monoxide (CO) in the 

presence of sunlight. In order to reduce 

ozone concentrations in the ambient air, 

the CAA requires all nonattainment 

areas to apply controls on VOC/NOX

emission sources to achieve emission 

reductions. 

Since the 1970s, EPA has consistently 

interpreted RACT to mean the lowest 

emission limit that a particular source is 

capable of meeting by the application of 

the control technology that is reasonably 

available considering technological and 

economic feasibility. See, e.g., 72 FR 

20586 at 20610 (April 25, 2007). Section 

182 of the CAA sets forth two separate 

RACT requirements for ozone 

nonattainment areas. The first 

requirement, contained in section 

182(a)(2)(A) of the CAA, and referred to 

as RACT fix-up, requires the correction 

of RACT rules for which EPA identified 

deficiencies before the CAA was 

amended in 1990. On March 31, 1994 

(59 FR 15117), EPA published a final 

rulemaking notice approving the 

Commonwealth of Virginia’s SIP 

revision in order to correct the 

Commonwealth’s VOC RACT 

regulations and establish and require 

the implementation of revised SIP 

regulations to control VOCs. 

The second requirement, set forth in 

section 182(b)(2) of the CAA, applies to 

moderate (or worse) ozone 

nonattainment areas and attainment 

areas in the ozone transport region 

(OTR) established pursuant to section 

184 of the CAA. These areas are 

required to implement RACT controls 

on all major VOC and NOX emission 

sources and on all sources and source 

categories covered by a control 

technology guideline (CTG) issued by 

EPA. On March 12, 1997 (62 FR 11332), 

EPA published a final rulemaking notice 

approving the Commonwealth of 

Virginia’s SIP revision as meeting the 

CTG RACT provisions of the CAA. 

Further details of Virginia’s RACT 

requirements can be found in a 

Technical Support Document (TSD) 

prepared for this rulemaking. 

The counties of Fairfax, Loudoun, 

Prince William, and Arlington, as well 

as the cities of Fairfax, Alexandria, 

Manassas, Manassas Park, and Falls 

Church, Virginia (collectively referred to 

in this notice as Northern Virginia), 

along with Stafford County, Virginia, 

Washington, DC, and portions of 


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southern Maryland, are part of the OTR. 

The OTR is established by section 184 

of the CAA. Under the 1-hour ozone 

NAAQS, these jurisdictions, including 

Stafford County, Virginia, Washington, 

DC, and portions of southern Maryland 

were originally classified as part of the 

Metropolitan Washington serious 1-hour 

ozone nonattainment area (Washington 

1-hour Area) (56 FR 56694 at 56844, 

November 6, 1991). 

The Washington 1-hour Area had 

certain RACT requirements under 

section 182 for VOC and NOX. Section 

182(b)(2) of the CAA required the 

Commonwealth of Virginia to 

implement RACT on all sources and 

source categories covered by a CTG 

issued by EPA. Point sources with the 

potential to emit 50 tons per year or 

more of VOCs or 100 tons per year or 

more of NOX that were not covered by 

a CTG were also required to implement 

RACT. As a result of failure to meet the 

attainment date of November 15, 1999, 

the Metropolitan Washington area was 

reclassified from serious to severe 

nonattainment area for the 1-hour 

standard (68 FR 3410, January 24, 2003). 

As a result of the reclassification, the 

Commonwealth of Virginia was required 

to perform RACT evaluations on point 

sources with the potential to emit 25 

tons per year for either VOC (62 FR 

11334, March 12, 1997) or NOX (69 FR 

48150, August 9, 2004). See also 66 FR 

8, January 2, 2001; 69 FR 54578, 

September 9, 2004; 69 FR 59812, 

October 6, 2004; 69 FR 54600, 

September 9, 2004. 

The Washington 1-hour Area is also 

part of the OTR. The OTR is established 

by section 184 of the CAA. Areas in the 

OTR are subject to OTR-specific RACT 

requirements. Section 184(b)(1)(B) of the 

CAA requires the implementation of 

RACT with respect to all sources of VOC 

covered by a CTG. Additionally, section 

184(b)(2) of the CAA requires the 

implementation of major stationary 

source requirements as if the area were 

a moderate nonattainment area on any 

stationary source with a potential to 

emit at least 50 tons per year of VOC or 

100 tons per year of NOX. However, the 

Washington 1-hour Area satisfies the 

section 184 RACT requirements because 

section 182 requirements are more 

stringent as a result of reclassification to 

a severe nonattainment area for the 1- 

hour standard; therefore, no additional 

measures for the implementation of 

RACT are applicable (68 FR at 3425, 

January 24, 2003). 

Under the 8-hour ozone NAAQS, the 

Washington 1-hr Area, with the 

exception of Stafford County, was 

designated and classified as a moderate 

nonattainment area, and is therefore 

subject to the CAA RACT requirements 

in section 182(b) (69 FR 23858, April 30, 

2004). Virginia is required to submit to 

EPA a SIP revision that demonstrates 

how the Commonwealth meets the 

RACT requirements under the 8-hour 

ozone standard in Northern Virginia. 

EPA requires under the 8-hour ozone 

NAAQS that states meet the CAA RACT 

requirements, either through a 

certification that previously adopted 

RACT controls in their SIP approved by 

EPA under the 1-hour ozone NAAQS 

represent adequate RACT control levels 

for 8-hour attainment purposes, or 

through the establishment of new or 

more stringent requirements that 

represent RACT control levels. See Final 

Rule To Implement the 8-Hour Ozone 

National Ambient Air Quality 

Standard—Phase 2; Final Rule To 

Implement Certain Aspects of the 1990 

Amendments Relating to New Source 

Review and Prevention of Significant 

Deterioration as They Apply in Carbon 

Monoxide, Particulate Matter and 

Ozone NAAQS; Final Rule for 

Reformulated Gasoline (Phase 2 Rule) 

70 FR 71612, 71655, November 29, 

2005. Sections 172(c)(1) and 182(b)(2) of 

the CAA require that all SIPs satisfy the 

NOX and VOCs RACT requirements that 

apply in areas that have not attained the 

NAAQS for ozone. See 42 U.S.C. 

7502(c)(1), 42 U.S.C. 7511a(b)(2), and 42 

U.S.C. 7511a(f). EPA has determined 

that States that have RACT provisions 

approved in their SIPs for 1-hour ozone 

nonattainment areas have several 

options for fulfilling the RACT 

requirements for the 8-hour ozone 

NAAQS. If a State meets certain 

conditions, it may certify that 

previously adopted 1-hour ozone RACT 

controls in the SIP continue to represent 

RACT control levels for purposes of 

fulfilling 8-hour ozone RACT 

requirements. Alternatively, a State may 

establish new or more stringent 

requirements that represent RACT 

control levels, either in lieu of or in 

conjunction with a certification. 

As set forth in the preamble to the 

Phase 2 Rule, a certification must be 

accompanied by appropriate supporting 

information such as consideration of 

information received during the public 

comment period and consideration of 

new data (70 FR at 71655). This 

information may supplement existing 

RACT guidance documents that were 

developed for the 1-hour standard, such 

that the State’s SIP accurately reflects 

RACT for the 8-hour ozone standard 

based on the current availability of 

technically and economically feasible 

controls. Establishment of new RACT 

requirements will occur when states 

have new stationary sources not covered 

by existing RACT regulations, or when 

new data or technical information 

indicates that a previously adopted 

RACT measure does not represent a 

newly available RACT control level. 

Another 8-hour ozone NAAQS 

requirement for RACT is to submit a 

negative declaration if there are no CTG 

sources or major sources of VOC and 

NOX emissions in lieu of or in addition 

to a certification. 

II. Summary of SIP Revision 

On October 23, 2006, the Virginia 

Department of Environmental Quality 

(VADEQ) submitted a revision to its SIP 

that addresses the requirements of 

RACT under the 8-hour ozone NAAQS 

set forth by the CAA. Virginia’s SIP 

revision is consistent with the process 

in the Phase 2 Rule preamble, and 

satisfies the requirements of RACT set 

forth by the CAA under the 8-hour 

ozone NAAQS. Virginia’s SIP revision 

satisfies the 8-hour RACT requirements 

through (1) certification that previously 

adopted RACT controls in Virginia’s SIP 

that were approved by EPA under the 1- 

hour ozone NAAQS are based on the 

currently available technically and 

economically feasible controls, and 

continues to represent RACT for the 8- 

hour implementation purposes; (2) a 

negative declaration demonstrating that 

no facilities exist in the Virginia portion 

of the Washington, DC-MD-VA area for 

the applicable CTG categories; and (3) a 

new RACT determination for a single 

source. 

A. VOC CTG RACT Controls 

Virginia’s Regulations codified at 9 

VAC 5 Chapter 40, contain the 

Commonwealth’s CTG VOC RACT 

controls that were implemented and 

approved in the Virginia SIP under the 

1-hour ozone NAAQS. Table 1 lists 

Virginia’s VOC RACT controls, which 

Virginia is certifying as meeting the 8- 

hour RACT requirements. 


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TABLE 1—VIRGINIA’S CTG VOC RACT CONTROLS

Regulation 

(9 VAC 5) 

Existing Stationary Sources—40 CFR 52.2420 (c) 

Title of regulation 

State 

effective 

date 

Federal Register date for 

SIP 

approval 

Citation 

5–40–460 ........... Emission Standards for Synthesized Pharmaceutical Products Manufacturing Operations.02/1/02 03/3/06 71 FR 10838. 

5–40–610 ........... Emission Standards for Rubber Tire Manufacturing Operations ........... 04/17/95 04/21/00 65 FR 21315. 

5–40–1400 ......... Emission Standards for Petroleum Refinery Operations ....................... 04/17/95 04/21/00 65 FR 21315. 

5–40–3290 ......... Emission Standards for Solvent Metal Cleaning Operations Using 

Non-Halogenated Solvents.

04/1/97 11/3/99 64 FR 59635. 

5–40–3590 ......... Emission Standards for Large Appliance Coating Application Systems 04/17/95 04/21/00 65 FR 21315. 

5–40–3740 ......... Emission Standards for Magnet Wire Coating Application Systems ..... 04/17/95 04/21/00 65 FR 21315. 

5–40–3890 ......... Emission Standards for Automobile and Light Duty Truck Coating Application Systems.04/17/95 04/21/00 65 FR 21315. 

5–40–4040 ......... Emission Standards for Can Coating Application Systems ................... 04/17/95 04/21/00 65 FR 21315. 

5–40–4190 ......... Emission Standards for Metal Coil Coating Application Systems ......... 04/17/95 04/21/00 65 FR 21315. 

5–40–4340 ......... Emission Standards for Paper and Fabric Coating Application Systems.04/17/95 04/21/00 65 FR 21315. 

5–40–4490 ......... Emission Standards for Vinyl Coating Application Systems ................. 04/17/95 04/21/00 65 FR 21315. 

5–40–4640 ......... Emission Standards for Metal Furniture Coating Application Systems 04/17/95 04/21/00 65 FR 21315. 

5–40–4790 ......... Emission Standards for Miscellaneous Metal Parts and Products 

Coating Application Systems.

04/17/95 04/21/00 65 FR 21315. 

5–40–4940 ......... Emission Standards for Flatwood Paneling Coating Application Systems.04/17/95 04/21/00 65 FR 21315. 

5–40–5080 ......... Flexographic, Packaging Rotogravure, and Publication Rotogravure 

Printing Lines.

04/1/96 03/12/97 62 FR 11334. 

5–40–5230 ......... Emission Standards for Petroleum Liquid Storage and Transfer Operations—Stage I Vapor Control Systems—Gasoline Service Stations.02/1/02 03/3/06 71 FR 10838. 

5–40–5230 ......... Emission Standards for Petroleum Liquid Storage and Transfer Operations—Tank Truck Gasoline Loading Terminals.02/1/02 03/3/06 71 FR 10838. 

5–40–5230 ......... Emission Standards for Petroleum Liquid Storage and Transfer Operations—Bulk Gasoline Plants.02/1/02 03/3/06 71 FR 10838. 

5–40–5230 ......... Emission Standards for Petroleum Liquid Storage and Transfer Operations—Petroleum Liquids in Fixed Roof Tanks.02/1/02 03/3/06 71 FR 10838. 

5–40–5230 ......... Emission Standards for Petroleum Liquid Storage and Transfer Operations—Petroleum Liquid Storage in External Floating Roof Tanks.02/1/02 03/3/06 71 FR 10838. 

5–40–5230 ......... Emission Standards for Petroleum Liquid Storage and Transfer Operations—Gasoline Tank Trucks and Vapor Collection Systems.02/1/02 03/3/06 71 FR 10838. 

5–40–5510 ......... Emission Standards for Asphalt Paving Operations .............................. 04/17/95 04/21/00 65 FR 21315. 

5–40–6840 ......... Emission Standards for Solvent Metal Cleaning Operations in the 

Northern Virginia Volatile Organic Compound Emissions Control 

Area.

03/24/04 06/09/04 69 FR 32277. 

Virginia also submitted a negative 

declaration certifying that the following 

VOC CTG sources do not exist in 

Northern Virginia and therefore there is 

no need for Virginia to adopt CTGs for 

these sources. Table 2 lists VOC CTG 

sources in Virginia’s negative 

declaration. 

TABLE 2—VOC CTG SOURCES FOR WHICH NO APPLICABLE FACILITIES EXIST IN NORTHERN VIRGINIA

Control of Volatile Organic Compound Leaks from Petroleum Refinery Equipment. 

Control of Volatile Organic Compound Emissions form Large Petroleum Dry Cleaners. 

Control of Volatile Organic Compound Emissions from Manufacture of High Density Polyethylene, Polypropylene, and Polystyrene Resins. 

Control of Volatile Organic Compound Equipment Leaks form Natural Gas/Gasoline Processing Plants. 

Control of Volatile Organic Compound fugitive Emission from Synthetic Organic Chemical Polymer and Resin Manufacturing Equipment. 

Control of Volatile Organic Compound Emissions from Air Oxidation Processes in Synthetic Organic Chemical Manufacturing Industry. 

SOCMI Distillation and Reactor Processes. 

Wood Furniture. 

Shipbuilding/repair. 

Aerospace. 

B. Source-specific RACT Controls 

Table 3 lists Virginia’s source-specific 

RACT controls, that were implemented 

and approved into the Virginia SIP 

under the 1-hour ozone NAAQS, which 

Virginia is certifying as meeting the 8- 

hr RACT requirements for VOC and/or 

NOX. 


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TABLE 3—SOURCE-SPECIFIC RACT CONTROLS

Facility name State effective 

date Pollutant Federal Register date Citation 

Pentagon Utilities Plant .......................................................................... 05/17/00 NOX .................... 01/02/01 66 FR 8. 

Washington Gas Light Company ........................................................... 04/03/98 NOX .................... 01/02/01 66 FR 8. 

Dominion Virginia Power-Possum Point Power Station1 ....................... n/a NOX .................... n/a n/a. 

06/12/95 VOC ................... 01/02/01 66 FR 8. 

Mirant-Potomac River Power Plant1 ...................................................... n/a NOX .................... n/a n/a. 

05/08/00 VOC ................... 01/02/01 66 FR 8. 

United States Marine Base—Quantico .................................................. 05/24/00 NOX .................... 01/02/01 66 FR 8. 

U.S. Army—Fort Belvoir ......................................................................... 05/16/00 NOX .................... 01/02/01 66 FR 8. 

Noman M. Cole, Jr. Pollution Control Plant ........................................... 12/23/99 NOX .................... 01/02/01 66 FR 8. 

Covanta—Alexandria .............................................................................. 07/31/98 NOX .................... 01/02/01 66 FR 8. 

Covanta—Fairfax .................................................................................... 04/03/98 NOX .................... 01/02/01 66 FR 8. 

Transco—Station 185 ............................................................................. 09/05/96 NOX .................... 01/02/01 66 FR 8. 

Michigan Cogeneration Systems, Inc .................................................... 05/10/00 NOX .................... 01/02/01 66 FR 8. 

05/10/00 VOC ................... 01/02/01 66 FR 8. 

CNG Service Company .......................................................................... 05/22/00 NOX .................... 01/02/01 66 FR 8. 

05/22/00 VOC ................... 01/02/01 66 FR 8. 

Columbia Gas Transmission Corporation .............................................. 05/23/00 NOX .................... 01/02/01 66 FR 8. 

Prince William County Department of Public Works ............................. 04/16/04 NOX .................... 09/09/04 69 FR 54581. 

1 NOX SIP Call—These facilities in the Virginia portion of the Washington, DC-MD-VA 8-hour nonattainment area are subject to 9 VAC 5 Chapter 140 Regulation for Emissions Trading Part I NOX Budget Trading Program, often called the NOX SIP Call. These facilities may be recertified 

as meeting NOX RACT requirement based on the Phase 2 Rule and source-specific RACT controls, as well as their compliance with the NOX

Budget Trading Program (9 VAC 5 Chapter 140). See Phase 2 Rule, 70 FR 71617, 71652, November 29, 2005. 

A new RACT determination was 

performed for the Noman M. Cole 

Pollution Control Plant. Based on the 

results, the Noman M. Cole Pollution 

Control Plant’s existing RACT 

determination of proper operation and 

good combustion practices can be 

recertified. Further details of the 

Commonwealth of Virginia’s RACT 

determination can be found in a TSD 

prepared for this rulemaking. 

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. Proposed Action 

EPA is proposing to approve the 

Virginia SIP revision that addresses the 

requirements of RACT under the 8-hour 

ozone NAAQS, which was submitted on 

October 23, 2006. This SIP revision is 


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based on a combination of (1) 

certifications that previously adopted 

RACT controls in Virginia’s SIP that 

were approved by EPA under the 1-hour 

ozone NAAQS are based on the 

currently available technically and 

economically feasible controls, and 

continues to represent RACT for the 8- 

hour implementation purposes; (2) a 

negative declaration demonstrating that 

no facilities exist in the four county, five 

city area for the applicable CTG 

categories; and (3) a new RACT 

determination for a single source. EPA 

is soliciting public comments on the 

issues discussed in this document. 

These comments will be considered 

before taking final action. 

V. Statutory and Executive Order 

Reviews 

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 Clean Air Act. Accordingly, this 

action merely proposes to approve state 

law as meeting Federal requirements 

and does not impose additional 

requirements beyond those imposed by 

state law. For that reason, this proposed 

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 CAA; 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 proposed rule, 

pertaining to the Virginia RACT under 

the 8-hour ozone NAAQS, 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. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Nitrogen dioxide, 

Ozone, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: February 5, 2009. 

William T. Wisniewski, 

Acting Regional Administrator, Region III. 

[FR Doc. E9–5839 Filed 3–18–09; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 090206149–9302–01] 

RIN 0648–AX57 

Fisheries of the Northeastern United 

States; Proposed 2009 Specifications 

for the Spiny Dogfish Fishery 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes specifications 

for the spiny dogfish fishery for the 

2009 fishing year (FY) (May 1, 2009, 

through April 30, 2010). The 

implementing regulations for the Spiny 

Dogfish Fishery Management Plan 

(FMP) require NMFS to publish 

specifications for up to a period of 5 

years and to provide an opportunity for 

public comment. The intent of this 

rulemaking is to specify the commercial 

quota and other management measures, 

such as possession limits, to rebuild the 

spiny dogfish resource. NMFS proposes 

that the annual quota be set at 12 

million lb (5,443.11 mt), and that the 

possession limits for dogfish be set at 

3,000 lb (1.36 mt). 

DATES: Public comments must be 

received no later than 5 p.m. eastern 

standard time on April 3, 2009. 

ADDRESSES: You may submit comments, 

identified by RIN 0648–AX57, by any 

one of the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http:// 

www.regulations.gov 

• Fax: 978–281–9135, Attn: Jamie 

Goen 

• Mail: Patricia A. Kurkul, Regional 

Administrator, NMFS, Northeast 

Regional Office, 55 Great Republic 

Drive, Gloucester, MA 01930. Mark the 

outside of the envelope: ‘‘Comments on 

2009 Dogfish Spex.’’ 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments (enter N/A in the required 

fields, if you wish to remain 

anonymous). You may submit 

attachments to electronic comments in 

Microsoft Word, Excel, WordPerfect, or 

Adobe PDF file formats only. 

Copies of supporting documents used 

by the Mid-Atlantic Fishery 

Management Council (Council), 

including the Environmental 

Assessment (EA) and Regulatory Impact 

Review (RIR)/Initial Regulatory 

Flexibility Analysis (IRFA), are 

available from: Daniel T. Furlong, 

Executive Director, Mid-Atlantic 

Fishery Management Council, Room 

2115, Federal Building, 300 South New 

Street, Dover, DE 19904–6790. The EA/ 

RIR/IRFA is also accessible via the 

Internet at http://www.nero.noaa.gov. 

FOR FURTHER INFORMATION CONTACT: 

Jamie Goen, Fishery Policy Analyst, 

phone: 978–281–9220, fax: 978–281– 

9135. 

SUPPLEMENTARY INFORMATION: Spiny 

dogfish were declared overfished by 

NMFS on April 3, 1998, and added to 

that year’s list of overfished stocks in 

the Report on the Status of the Fisheries 

of the United States, prepared pursuant 

to section 304 of the Magnuson-Stevens 


pwalker on PROD1PC71 with PROPOSALS