Federal Register: March 25, 2009 (Volume , Number )
DOCID: fr25mr09-13 FR Doc E9-6663
ENVIRONMENTAL PROTECTION AGENCY
Environmental Protection Agency
CFR Citation: 40 CFR Part 52
EPA ID: [EPA-R03-OAR-2009-0093; FRL-8779-8]
DOCUMENT ACTION: Direct final rule.
Approval and Promulgation of Air Quality Implementation Plans; Virginia; Volatile Organic Compound Reasonably Available Control Technology for Reynolds Consumer Products Company
DATES: This rule is effective on May 26, 2009 without further notice, unless EPA receives adverse written comment by April 24, 2009. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.
EPA is taking direct final action to approve revisions to the Commonwealth of Virginia's State Implementation Plan (SIP). This revision pertains to a State operating permit containing terms and conditions for the control of emissions of volatile organic compounds (VOCs) from Reynolds Consumer Products Company located in Richmond, Virginia. The submittal is for the purpose of meeting the requirements for reasonably available control technology (RACT) in order to implement the maintenance plan for the Richmond 8hour ozone maintenance area. EPA is approving the revision to the Virginia SIP in accordance with the requirements of the Clean Air Act (CAA).
Virginia; Volatile Organic Compound Reasonably Available Control Technology for Reynolds Consumer Products Co.,
RACT is the lowest emission limit that a particular source is capable of meeting by the application of control technology that is reasonably available with the consideration of technological and economic feasibility. See, e.g., 72 FR 20586 at 20610 (April 25, 2007). When the Richmond area was originally designated as an ozone nonattainment area under the 1hour standard, it was classified as moderate and thereby had to meet the nonCTG RACT requirements of section 182 of the CAA. As part of the 1hour ozone attainment plan, one of the sources located in the area identified as being subject to nonCTG RACT was Reynolds Metals Company. The company's Richmond Foil Plant produces aluminum foil by rolling aluminum into very thin sheets. VOC emissions at this plant come from lubricants used on 16 foil rolling mills.
The Reynolds Consumer Products Company located in Richmond, Virginia underwent RACT analysis, and a consent order was issued to the facility on December 18, 1987. The order was then submitted to EPA as a SIP revision, and approved into the Commonwealth's SIP on August 20, 1990 (55 FR 33904).
On September 22, 2004, under the new 8hour ozone standard, the Richmond area was classified as a marginal nonattainment area. On September 20, 2006, the Virginia Department of Environmental Quality (VADEQ) formally submitted a request to redesignate the Richmond area from nonattainment to attainment for the 8hour ozone NAAQS. On September 25, 2006, the VADEQ submitted a maintenance plan for the Richmond area as a SIP revision to ensure continued attainment. The redesignation request and maintenance plan were approved on June 1, 2007 (72 FR 30485). Section 107(d)(3)(E) of the CAA stipulates that for an area to be redesignated, EPA must approve a maintenance plan that meets the requirements of Section 175A. All applicable nonattainment area requirements remain in place. The plan includes a demonstration that emissions will remain within the 2005 levels for a 10year period by keeping in place key elements of the current federal and state regulatory programs, including casebycase RACT requirements for the area. Because the Richmond area in which this facility is located has continuously been classified as either a nonattainment or a maintenance area, the RACT requirements remain in effect and a change to the facility's RACT requirements necessitates a change to the SIP. II. Summary of SIP Revision
On October 20, 2008, the Commonwealth of Virginia submitted a formal revision to its SIP. The SIP revision consists of a State operating permit containing terms and conditions for the control of emissions of VOCs from Reynolds Consumer Products Company located in Richmond, Virginia. The submittal is for the purpose of meeting the requirements for RACT in order to implement the maintenance plan for the Richmond 8hour ozone maintenance area.
Reynolds seeks the option of using less expensive and more readily available materials should the need arise due to recent costs and availability of the currently used material. A State operating permit, intended to replace the consent order for the facility, has been submitted to ensure compliance with the nonCTG RACT requirements. 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. 10.11198, 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. 10.11198, 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. 10.11199, 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 Virginia's Reynolds Consumer Products Company State operating permit SIP revision for the purpose of meeting the requirements for RACT in order to implement the maintenance plan for the Richmond 8hour ozone maintenance area.
EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comment. However, in the ``Proposed Rules'' section of today's
Federal Register, EPA is publishing a separate document that will serve
as the proposal to approve the SIP revision if adverse comments are
filed. This rule will be effective on May 26, 2009 without further
notice unless EPA receives adverse comment by April 24, 2009. If EPA
receives adverse comment, EPA will publish a timely withdrawal in the
Federal Register informing the public that the rule will not take
effect. EPA will address all public comments in a subsequent final rule
based on the proposed rule. EPA will not institute a second comment
period on this action. Any parties interested in commenting must do so at this time.
V. Statutory and Executive Order Reviews
A. General Requirements
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
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 Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 26, 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking.
This action approving Virginia's SIP revision pertaining to a State operating permit containing terms and conditions for the control of emissions of VOCs from the Reynolds Consumer Products Company 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, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Dated: February 24, 2009.
William T. Wisniewski,
Acting Regional Administrator, Region III.
40 CFR Part 52 is amended as follows:
1. The authority citation for 40 CFR part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
2. In Sec. 52.2420, the table in paragraph (d) is amended by adding the entry for Reynolds Consumer Products Company at the end of the table to read as follows:
Sec. 52.2420 Identification of plan.
* * * * *
(d) * * *
EPAApproved SourceSpecific Requirements State Source name Permit/order or effective EPA approval date 40 CFR part 52 registration number date citation * * * * * * * Reynolds Consumer Products Company Registration No. 10/1/08 03/25/09............. 52.2420(d)(12) 50534. [Insert page number where the document begins]. * * * * *
[FR Doc. E96663 Filed 32409; 8:45 am]
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