Federal Register / Vol. 74, No. 52 / Thursday, March 19, 2009 / Rules and Regulations 11661 

Name of non-regulatory SIP 

revision Applicable geographic area State submittal date EPA approval date Additional explanation 

1999–2005 Rate-of-Progress 

Plan SIP Revision and the 

Transportation Control 

Measures (TCMs) in Appendix J.

Washington DC 1-hour 

ozone nonattainment area.

9/2/03, 2/24/04 5/16/05, 70 FR 25688 ........... Only the TCMs in Appendix J 

of the 2/24/2004 revision 

2002 motor vehicle emissions budgets (MVEBs) of 

125.2 tons per day (tpy) for 

VOC and 290.3 tpy of 

NOX, and, 2005 MVEBs of 

97.4 tpy for VOC and 

234.7 tpy of NOX. 

VMT Offset SIP Revision ....... Washington DC 1-hour 

ozone nonattainment area.

9/2/03, 2/24/04 5/16/05, 70 FR 25688 ...........

Contingency Measure Plan ... Washington, DC Area ........... 9/2/03, 2/24/04 5/16/05, 70 FR 25688 ...........

1-hour Ozone Modeled Demonstration of Attainment.Washington DC 1-hour 

ozone nonattainment area.

9/2/03, 2/24/04 5/16/05, 70 FR 25688 ...........

Attainment Demonstration 

and Early Action Plan for 

the Washington County 

Ozone Early Action Compact Area.

Washington County ............... 12/20/04, 2/28/ 

05.

8/17/05, 70 FR 48283 ...........

1-hour Ozone Attainment 

Plan.

Washington DC 1-hour 

ozone nonattainment area.

9/2/2003, 2/24/ 

2004.

11/16/05, 70 FR 69440 .........

8–Hour Ozone Maintenance 

Plan for the Kent and 

Queen Anne’s Area.

Kent and Queen Anne’s 

Counties.

05/2/06, 05/19/ 

06.

12/22/06, 71 FR 76920 .........

[FR Doc. E9–5827 Filed 3–18–09; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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 

quinto.rose@epa.gov. 

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 

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11662 Federal Register / Vol. 74, No. 52 / Thursday, March 19, 2009 / Rules and Regulations 

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 § 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: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

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Federal Register / Vol. 74, No. 52 / Thursday, March 19, 2009 / Rules and Regulations 11663 

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 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. 

■ 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 9 VAC 5, Chapter 40, Part II, Article 

40, Sections 5–40–5600 through 5–40– 

5630 to read as follows: 

§ 52.2420 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES

State citation 

(9 VAC 5) Title/subject State effective date EPA approval date Explanation [former SIP citation] 

* * * * * * * 

Chapter 40 Existing Stationary Sources 

* * * * * * * 

Part II Emission Standards 

* * * * * * * 

Article 40 Open Burning (Rule 4–40) 

5–40–5600 ................... Applicability .................. 10/18/06 March 19, 2009 [Insert 

page number where 

the document begins].

Provisions of Article 40 expanded to new localities in the emissions control areas. 

5–40–5610 ................... Definitions .................... 10/18/06 March 19, 2009 [Insert 

page number where 

the document begins].

Terms added: ‘‘Air curtain incinerator,’’ ‘‘Clean 

lumber,’’ ‘‘Wood waste,’’ and ‘‘Yard waste.’’ 

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11664 Federal Register / Vol. 74, No. 52 / Thursday, March 19, 2009 / Rules and Regulations 

EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES—Continued 

State citation 

(9 VAC 5) Title/subject State effective date EPA approval date Explanation [former SIP citation] 

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 prohibitions.10/18/06 March 19, 2009 [Insert 

page number where 

the document begins].

5–40–5630 ................... Permissible open burning.10/18/06 March 19, 2009 [Insert 

page number where 

the document begins].

* * * * * * * 

* * * * * 

[FR Doc. E9–5822 Filed 3–18–09; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[DC103–2051; FRL–8775–3] 

Approval and Promulgation of Air 

Quality Implementation Plans; District 

of Columbia; Update to Materials 

Incorporated by Reference 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule; Notice of 

administrative change. 

SUMMARY: EPA is updating the materials 

submitted by the District of Columbia 

that are incorporated by reference (IBR) 

into the State implementation plan 

(SIP). The regulations affected by this 

update have been previously submitted 

by the District of Columbia Department 

of the Environment and approved by 

EPA. This update affects the SIP 

materials that are available for public 

inspection at the National Archives and 

Records Administration (NARA), the 

Air and Radiation Docket and 

Information Center located at EPA 

Headquarters in Washington, DC, and 

the EPA Regional Office. 

DATES: Effective Date: This action is 

effective March 19, 2009. 

ADDRESSES: SIP materials which are 

incorporated by reference into 40 CFR 

part 52 are available for inspection at 

the following locations: Air Protection 

Division, U.S. Environmental Protection 

Agency, Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103; the 

Air and Radiation Docket and 

Information Center, U.S. Environmental 

Protection Agency, 1301 Constitution 

Avenue, NW., Room B108, Washington, 

DC 20460; or the National Archives and 

Records Administration (NARA). For 

information on the availability of this 

material at NARA, call 202–741–6030, 

or go to: http://www.archives.gov/

federal_register/code_of_

federal_regulations/ibr_locations.html. 

FOR FURTHER INFORMATION CONTACT: 

Harold A. Frankford, (215) 814–2108 or 

by e-mail at frankford.harold@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The SIP is a living document which 

the state can revise as necessary to 

address the unique air pollution 

problems in the State. Therefore, EPA 

from time to time must take action on 

SIP revisions containing new and/or 

revised regulations as being part of the 

SIP. On May 22, 1997 (62 FR 27968), 

EPA revised the procedures for 

incorporating by reference Federallyapproved SIPs, as a result of 

consultations between EPA and Office 

of the Federal Register (OFR). The 

description of the revised SIP 

document, IBR procedures and 

‘‘Identification of plan’’ format are 

discussed in further detail in the May 

22, 1997 Federal Register document. On 

December 7, 1998, (63 FR 67407) EPA 

published a document in the Federal 

Register beginning the new IBR 

procedure for the District of Columbia. 

On August 6, 2004 (69 FR 47773) and 

September 6, 2005 (70 FR 52919), EPA 

published updates to the IBR material 

for the District of Columbia. 

II. EPA Action 

In this action, EPA is doing the 

following: 

1. Announcing the update to the IBR 

material as of December 1, 2008. 

2. Making corrections to text in the 

‘‘Title/subject’’ column to the following 

entries listed in the § 52.470(c) table: 

Section 702; Section 703.2, 703.3; 

Section 703.1, 703.4 through 703.7; 

Section 705.1 through 705.3, and 

Section 705.4 through 14. 

EPA has determined that today’s rule 

falls under the ‘‘good cause’’ exemption 

in section 553(b)(3)(B) of the 

Administrative Procedures Act (APA) 

which, upon finding ‘‘good cause,’’ 

authorizes agencies to dispense with 

public participation and section 

553(d)(3) which allows an agency to 

make a rule effective immediately 

(thereby avoiding the 30-day delayed 

effective date otherwise provided for in 

the APA). Today’s rule simply codifies 

provisions which are already in effect as 

a matter of law in Federal and approved 

State programs. Under section 553 of the 

APA, an agency may find good cause 

where procedures are ‘‘impractical, 

unnecessary, or contrary to the public 

interest.’’ Public comment is 

‘‘unnecessary’’ and ‘‘contrary to the 

public interest’’ since the codification 

only reflects existing law. Immediate 

notice in the CFR benefits the public by 

removing outdated citations and 

incorrect chart entries. 

III. 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 

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