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[Federal Register Volume 74, Number 52 (Thursday, March 19, 2009)]
[Proposed Rules]
[Pages 11702-11706]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-5839]

[[Page 11702]]

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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, DC-MD-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: [email protected].
    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 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 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 [email protected].

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

[[Page 11703]]

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.

[[Page 11704]]

                                    Table 1--Virginia's CTG VOC RACT Controls
----------------------------------------------------------------------------------------------------------------
                                                Existing Stationary Sources--40 CFR 52.2420 (c)
                             -----------------------------------------------------------------------------------
                                                                         Federal
    Regulation (9 VAC 5)                                  State       Register date
                               Title of regulation   effective date      for SIP               Citation
                                                                        approval
----------------------------------------------------------------------------------------------------------------
5-40-460....................  Emission Standards            02/1/02         03/3/06  71 FR 10838.
                               for Synthesized
                               Pharmaceutical
                               Products
                               Manufacturing
                               Operations.
5-40-610....................  Emission Standards           04/17/95        04/21/00  65 FR 21315.
                               for Rubber Tire
                               Manufacturing
                               Operations.
5-40-1400...................  Emission Standards           04/17/95        04/21/00  65 FR 21315.
                               for Petroleum
                               Refinery Operations.
5-40-3290...................  Emission Standards            04/1/97         11/3/99  64 FR 59635.
                               for Solvent Metal
                               Cleaning Operations
                               Using Non-
                               Halogenated Solvents.
5-40-3590...................  Emission Standards           04/17/95        04/21/00  65 FR 21315.
                               for Large Appliance
                               Coating Application
                               Systems.
5-40-3740...................  Emission Standards           04/17/95        04/21/00  65 FR 21315.
                               for Magnet Wire
                               Coating Application
                               Systems.
5-40-3890...................  Emission Standards           04/17/95        04/21/00  65 FR 21315.
                               for Automobile and
                               Light Duty Truck
                               Coating Application
                               Systems.
5-40-4040...................  Emission Standards           04/17/95        04/21/00  65 FR 21315.
                               for Can Coating
                               Application Systems.
5-40-4190...................  Emission Standards           04/17/95        04/21/00  65 FR 21315.
                               for Metal Coil
                               Coating Application
                               Systems.
5-40-4340...................  Emission Standards           04/17/95        04/21/00  65 FR 21315.
                               for Paper and Fabric
                               Coating Application
                               Systems.
5-40-4490...................  Emission Standards           04/17/95        04/21/00  65 FR 21315.
                               for Vinyl Coating
                               Application Systems.
5-40-4640...................  Emission Standards           04/17/95        04/21/00  65 FR 21315.
                               for Metal Furniture
                               Coating Application
                               Systems.
5-40-4790...................  Emission Standards           04/17/95        04/21/00  65 FR 21315.
                               for Miscellaneous
                               Metal Parts and
                               Products Coating
                               Application Systems.
5-40-4940...................  Emission Standards           04/17/95        04/21/00  65 FR 21315.
                               for Flatwood
                               Paneling Coating
                               Application Systems.
5-40-5080...................  Flexographic,                 04/1/96        03/12/97  62 FR 11334.
                               Packaging
                               Rotogravure, and
                               Publication
                               Rotogravure Printing
                               Lines.
5-40-5230...................  Emission Standards            02/1/02         03/3/06  71 FR 10838.
                               for Petroleum Liquid
                               Storage and Transfer
                               Operations--Stage I
                               Vapor Control
                               Systems--Gasoline
                               Service Stations.
5-40-5230...................  Emission Standards            02/1/02         03/3/06  71 FR 10838.
                               for Petroleum Liquid
                               Storage and Transfer
                               Operations--Tank
                               Truck Gasoline
                               Loading Terminals.
5-40-5230...................  Emission Standards            02/1/02         03/3/06  71 FR 10838.
                               for Petroleum Liquid
                               Storage and Transfer
                               Operations--Bulk
                               Gasoline Plants.
5-40-5230...................  Emission Standards            02/1/02         03/3/06  71 FR 10838.
                               for Petroleum Liquid
                               Storage and Transfer
                               Operations--Petroleu
                               m Liquids in Fixed
                               Roof Tanks.
5-40-5230...................  Emission Standards            02/1/02         03/3/06  71 FR 10838.
                               for Petroleum Liquid
                               Storage and Transfer
                               Operations--Petroleu
                               m Liquid Storage in
                               External Floating
                               Roof Tanks.
5-40-5230...................  Emission Standards            02/1/02         03/3/06  71 FR 10838.
                               for Petroleum Liquid
                               Storage and Transfer
                               Operations--Gasoline
                               Tank Trucks and
                               Vapor Collection
                               Systems.
5-40-5510...................  Emission Standards           04/17/95        04/21/00  65 FR 21315.
                               for Asphalt Paving
                               Operations.
5-40-6840...................  Emission Standards           03/24/04        06/09/04  69 FR 32277.
                               for Solvent Metal
                               Cleaning Operations
                               in the Northern
                               Virginia Volatile
                               Organic Compound
                               Emissions Control
                               Area.
----------------------------------------------------------------------------------------------------------------

    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.

[[Page 11705]]

                                     Table 3--Source-Specific RACT Controls
----------------------------------------------------------------------------------------------------------------
                                     State                                   Federal
         Facility name          effective date         Pollutant          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             n/a  NOX....................             n/a  n/a.
 Point Power Station\1\.
                                      06/12/95  VOC....................        01/02/01  66 FR 8.
Mirant-Potomac River Power                 n/a  NOX....................             n/a  n/a.
 Plant\1\.
                                      05/08/00  VOC....................        01/02/01  66 FR 8.
United States Marine Base--           05/24/00  NOX....................        01/02/01  66 FR 8.
 Quantico.
U.S. Army--Fort Belvoir.......        05/16/00  NOX....................        01/02/01  66 FR 8.
Noman M. Cole, Jr. Pollution          12/23/99  NOX....................        01/02/01  66 FR 8.
 Control Plant.
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,        05/10/00  NOX....................        01/02/01  66 FR 8.
 Inc.
                                      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             05/23/00  NOX....................        01/02/01  66 FR 8.
 Corporation.
Prince William County                 04/16/04  NOX....................        09/09/04  69 FR 54581.
 Department of Public Works.
----------------------------------------------------------------------------------------------------------------
\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 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. 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

[[Page 11706]]

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
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