[Federal Register Volume 69, Number 152 (Monday, August 9, 2004)]
[Rules and Regulations]
[Pages 48150-48153]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18023]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[VA146-5080a; FRL-7798-6]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Revised Major Stationary Source Applicability for Reasonably 
Available Control Technology in the Northern Virginia Ozone 
Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve a revision to the 
Commonwealth of Virginia State Implementation Plan (SIP). The revision 
specifies that the Northern Virginia Ozone Nonattainment Area is now 
subject to the severe major source permitting requirements and lowers 
the major stationary source threshold for nitrogen oxide 
(NOX) from 50 tons per year to 25 tons per year. EPA is 
approving this revision to the Commonwealth of Virginia SIP in 
accordance with the requirements of the Clean Air Act (CAA).

DATES: This rule is effective on October 8, 2004 without further 
notice, unless EPA receives adverse written comment by September 8, 
2004. 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: Submit your comments, identified by VA146-5080 by one of the 
following methods:
    A. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    B. E-mail: [email protected].
    C. Mail: Makeba Morris, Chief, Air Quality Planning Branch Name, 
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. VA146-5080. 
EPA's policy is that all comments received will be included in the 
public docket without change, 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 regulations.gov or e-
mail. The federal 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 
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.
    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, and the Virginia Department 
of Environmental Quality, 629 East Main Street, Richmond, Virginia 
23219.

FOR FURTHER INFORMATION CONTACT: Janice Lewis, (215) 814-2185, or by e-
mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On January 24, 2003 (68 FR 3410), EPA issued a determination that 
the Metropolitan Washington, DC ozone nonattainment area (DC Area) 
failed to attain the ozone standard by the statutory date of November 
15, 1999, and reclassified the area from ``serious'' to ``severe'' for 
one-hour ozone. As a

[[Page 48151]]

severe nonattainment area, the DC Area must now meet the requirements 
of section 182(d) of the CAA, and attain the one-hour ozone standard by 
November 15, 2005. As a result of the reclassification to severe 
nonattainment, the states that comprise the DC Area (Maryland, 
Virginia, and the District of Columbia) must implement additional 
control measures and submit SIP revisions for post-1999 Rate of 
Progress Plans, Contingency Plans, and the Attainment Demonstration.
    On February 4, 2004, the Commonwealth of Virginia submitted a 
formal revision to its SIP. The SIP revision consists of amendments to 
the Northern Virginia Ozone Nonattainment Area. This regulation applies 
only to sources in the Northern Virginia counties of Arlington, 
Fairfax, Loudoun, Prince William, and Stafford, and the cities of 
Alexandria, Fairfax, Falls Church, Manassas, and Manassas Park.

II. Summary of SIP Revision

    On February 4, 2004, the Virginia Department of Environmental 
Quality (VADEQ) submitted a formal revision to its SIP. The SIP 
revision consists of amendments to (1) specify that the Northern 
Virginia Ozone Nonattainment Area is now classified as severe 
nonattainment and now subject to Virginia's severe ozone nonattainment 
major source permitting requirements; and (2) lower the major 
stationary source threshold for NOX from 50 tons per year to 
25 tons per year. Virginia regulation 9 VAC 5-40-310, as revised, 
specifies that facilities achieve compliance with emission standards as 
expeditiously as possible but no later than the following dates:
    1. For facilities in the Northern Virginia Emissions Control Area 
with a theoretical potential to emit 50 tons per year or greater, May 
31, 1995.
    2. For facilities in Northern Virginia Emissions Control Area with 
a theoretical potential to emit 25 tons per year or greater, but less 
than 50 tons per year, November 15, 2005.
    This regulation applies to all facilities in the Northern Virginia 
Emissions Control Area and has the theoretical potential to emit 25 
tons per year or greater. The theoretical potential to emit shall be 
based on emissions at design capacity or maximum production and maximum 
operating hours (8,760 hours/year) before add-on controls, unless the 
facility is subject to a state and federally enforceable permit 
conditions which limits production rates or hours of operation.

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 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.

IV. Final Action

    EPA is approving as revision to the Commonwealth of Virginia SIP 
the amendments to Virginia's air pollution control regulations which 
reclassify the Northern Virginia Ozone Nonattainment Area from serious 
to severe and lower the major stationary source threshold for 
NOX from 50 tons per year to 25 tons per year. 
Implementation of this revision will strengthen the Virginia SIP, and 
result in emission reductions that will assist the DC area in meeting 
the additional requirements associated with its reclassification as a 
severe nonattainment area for one-hour ozone.
    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 October 8, 2004 without further 
notice unless EPA receives adverse comment by September 8, 2004. If EPA 
receives adverse comment, EPA

[[Page 48152]]

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. Please note that if 
EPA receives adverse comment on an amendment, paragraph, or section of 
this rule and if that provision may be severed from the remainder of 
the rule, EPA may adopt as final those provisions of the rule that are 
not the subject of an adverse comment.

V. Statutory and Executive Order Reviews

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. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). 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 (Pub. L. 104-4). This rule also does not 
have tribal implications because it will not have a substantial direct 
effect on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes, 
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). 
This action also does not have Federalism implications because it does 
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). 
This action 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 ``Protection of Children 
from Environmental Health Risks and Safety Risks'' (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. 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 October 8, 2004. 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, approving the Commonwealth of Virginia's 
regulations to specify reclassification of the Northern Virginia Ozone 
Nonattainment Area from serious to severe and lower the major 
stationary source threshold for NOX from 50 tons per year to 
25 tons per year, 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, Nitrogen dioxide, 
Ozone, Reporting and recordkeeping requirements, Volatile organic 
compounds.

    Dated: July 29, 2004.
Donald S. Welsh,
Regional Administrator, Region III.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart VV--Virginia

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2. In Sec.  52.2420, the table in paragraph (c) is amended by revising 
entries to 9 VAC 5 Chapter 20, Section 5-40-204 and Chapter 40, Section 
5-40-310A.-E. to read as follows:


Sec.  52.2420  Identification of plan.

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

[[Page 48153]]



                                  EPA-Approved Regulations in the Virginia SIP
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                                                          State                                   Explanation
    State citation  (9 VAC 5)        Title/subject      effective       EPA approval date        (former  SIP
                                                          date                                     section)
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                                          Chapter 20 General Provisions
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                                          Part II--Air Quality Programs
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5-20-204........................  Nonattainment            6/4/03   8/9/04 FR page citation]
                                   areas.
 
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                                     Chapter 40--Existing Stationary Sources
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                                           Part II--Emission Standards
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                     Article 4--Emission Standards for General Process Operations (Rule 4-4)
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5-40-310A.-E....................  Standard for             6/4/03   8/9/04 FR page citation]
                                   nitrogen oxides.
 
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[FR Doc. 04-18023 Filed 8-6-04; 8:45 am]
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