[Federal Register Volume 65, Number 203 (Thursday, October 19, 2000)]
[Rules and Regulations]
[Pages 62626-62629]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-26908]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[VA109-5050; FRL-6887-7]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Approval of Removal of TSP Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving revisions to the Commonwealth of Virginia's 
State Implementation Plan (SIP). The revisions consist of the removal 
of references to total suspended particulates (TSP) from sections of 
the Commonwealth's regulations regarding ambient air quality standards 
and air pollution episode prevention. These revisions were submitted by 
the Commonwealth of Virginia, Department of Environmental Quality 
(VDEQ) as a revision to its SIP on April 21, 2000.

DATES: This rule is effective on December 18, 2000 without further 
notice, unless EPA receives adverse written comment by November 20, 
2000. 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.

ADDRESSES: Written comments should be mailed to Mr. Denis Lohman, 
Acting Chief, Technical Assessment Branch,

[[Page 62627]]

Mailcode 3AP22, U.S. Environmental Protection Agency, Region III, 1650 
Arch Street, Philadelphia, Pennsylvania 19103. Copies of the documents 
relevant to this action are available 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; Virginia Department of Environmental 
Quality, 629 East Main Street, Richmond, Virginia, 23219.

FOR FURTHER INFORMATION CONTACT: Ruth E. Knapp, (215) 814-2191, or by 
e-mail at [email protected]. While questions may be submitted via e-
mail, any comments on this rulemaking action must be submitted, in 
writing, as indicated above.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us'' or ``our'' are used we mean EPA.

Table of Contents

I. What is EPA Approving?
II. What are the Provisions of the Revised Regulation?
III. What are the Environmental Effects of this Action?
IV. Special Provisions Related to Virginia.
V. EPA Rulemaking Action.
VI. Administrative Requirements.

I. What is EPA Approving?

    We are approving, as a SIP revision, the removal of references to 
TSP ambient standards from Virginia's regulations found at Title 9 VAC 
5 Chapters 30 and 70. Chapter 30 is entitled, Ambient Air Quality 
Standards, and Chapter 70 is entitled, Air Pollution Episode 
Prevention.

II. What are the Provisions of the Revised Regulation?

    In 1987, EPA replaced the National Ambient Air Quality Standards 
(NAAQS) for TSP with NAAQS for particulate matter less than 10 
micrometers in diameter (PM10). At that time, we determined that 
smaller particles (PM10) were responsible for health and welfare 
effects. Unlike larger particles, the smaller particles are able to 
enter the respiratory system. On July 1, 1988, the Commonwealth adopted 
the Federal NAAQS for PM10 at 9 VAC 5-30-60. Likewise, Virginia adopted 
references to PM10 ambient levels in 9 VAC 5-70-40 ``Episode 
determination.''
    The SIP revision consists of the repeal of the entire text of 9 VAC 
5-30-20 ``Particulate matter (TSP)'' to delete all references to TSP as 
a primary and secondary ambient standard. In addition, references to 
TSP ambient standards in 9 VAC 5-70-40 ``Episode determination'' are 
also being deleted. Although, these references to TSP ambient standards 
are being removed, the Commonwealth's regulations continue include the 
appropriate references to PM10.

III. What are the Environmental Effects of this Action?

    The Commonwealth's regulations governing the control of fugitive 
dust of all sizes, including TSP, from various types of sources such as 
sand and gravel processing remain in effect. The removal of references 
to the former TSP ambient standards from 9 VAC -5-30-20 and 5-70-40 do 
not amend the Commonwealth's fugitive dust regulations. Therefore, no 
adverse environmental effects occur as the result of this SIP revision.

IV. Special Provisions Related to 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 
demonstrates a clear, imminent and substantial danger to the public 
health or environment; or (4) that are required by law.
    On January 12, 1997, 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 ``regarding section 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, 
1997 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 Clean Air Act, 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 Clean Air Act is likewise 
unaffected by this, or any, state audit privilege or immunity law.

V. EPA's Rulemaking Action

    We are approving revisions to the Virginia SIP submitted on April 
21, 2000. The revisions remove references to TSP ambient air quality 
standards and levels previously found at 9 VAC 5-30-20 and 9 VAC 5-70-
40. We are publishing this action without prior proposal because we 
view this as a noncontroversial revision and anticipate

[[Page 62628]]

no adverse comments. However, in a separate document in the ``Proposed 
Rules'' section of today's Federal Register, we are 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 
December 18, 2000 without further notice unless we receive adverse 
comment by November 20, 2000. Should we receive such comments, we will 
publish a timely withdrawal in the Federal Register informing the 
public that the rule will not take effect. We will address all public 
comments in a subsequent final rule based on the proposed rule. We will 
not institute a second comment period on this action. Any parties 
interested in commenting must do so at this time.

VI. Administrative Requirements

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, 
this rule also does not significantly or uniquely affect the 
communities of tribal governments, as specified by Executive Order 
13084 (63 FR 27655, May 10, 1998). This rule will not have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132 (64 FR 43255, August 10, 1999), because it 
merely approves a state rule implementing a Federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. This rule also is 
not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), 
because it is not economically significant. In reviewing SIP 
submissions, EPA's role is to approve state choices, provided that they 
meet the criteria of the Clean Air Act. In this context, in the absence 
of a prior existing requirement for the State to use voluntary 
consensus standards (VCS), EPA has no authority to disapprove a SIP 
submission for failure to use VCS. It would thus be inconsistent with 
applicable law for EPA, when it reviews a SIP submission, to use VCS in 
place of a SIP submission that otherwise satisfies the provisions of 
the Clean Air Act. Thus, the requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) do not apply. As required by Section 3 of Executive Order 12988 
(61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the 
necessary steps to eliminate drafting errors and ambiguity, minimize 
potential litigation, and provide a clear legal standard for affected 
conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 
15, 1988) by examining the takings implications of the rule in 
accordance with the ``Attorney General's Supplemental Guidelines for 
the Evaluation of Risk and Avoidance of Unanticipated Takings' issued 
under the executive order. This rule does not impose an information 
collection burden under the provisions of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.).

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 rule 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. This rule 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 December 18, 2000. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule 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 regarding the removal of references to TSP 
ambient standards and levels from 9 VAC 5-30-20 and 9 VAC 5-70-40 of 
the Commonwealth of Virginia's regulations 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, Particulate 
matter, Reporting and recordkeeping requirements.

    Dated: October 5, 2000.
Bradley M. Campbell,
Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

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

Subpart VV--Virginia

    2. In Sec. 52.2420, the entries for 9 VAC 5, Chapter 30, subsection 
5-30-20 and Chapter 70, subsection 5-70-40 in the ``EPA Approved 
Regulations in the Virginia SIP'' table in paragraph (c) is revised to 
read as follows:


Sec. 52.2420  Identification of plan.

* * * * *
    (c) EPA approved regulations.

                                  EPA-Approved Regulations in the Virginia SIP
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                                                                                                 Explanation
     State citation (9 VAC 5)         Title/subject          State       EPA approval date       [former SIP
                                                        effective date                            citation]
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*                  *                  *                  *                  *                  *
                                                        *
Chapter 30.......................                     Ambient Air Quality Standards (Part III)
 

[[Page 62629]]

 
*                  *                  *                  *                  *                  *
                                                        *
5-30-20..........................  Particulate Matter           4/1/99  Type: 10/19/00.....  This section is
                                    (TSP).                                                    being
                                                                                             removed.
 
*                  *                  *                  *                  *                  *
                                                        *
Chapter 70.......................                    Air Pollution Episode Prevention (Part VII)
 
*                  *                  *                  *                  *                  *
                                                        *
5-70-40..........................  Episode                      4/1/99  Type: 10/19/00.....  References to TSP
                                    Determination.                                            are being removed.
 
*                  *                  *                  *                  *                  *
                                                        *
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[FR Doc. 00-26908 Filed 10-18-00; 8:45 am]
BILLING CODE 6560-50-P