[Federal Register Volume 70, Number 91 (Thursday, May 12, 2005)]
[Rules and Regulations]
[Pages 24987-24991]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-9315]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R03-OAR-2004-MD-0001; R03-OAR-2004-VA-0005; FRL-7909-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Maryland and Virginia; Non-Regulatory Voluntary Emission Reduction 
Program Measures

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving State Implementation Plan (SIP) revisions 
submitted by the State of Maryland and by the Commonwealth of Virginia. 
These revisions establish a number of non-regulatory measures for which 
Maryland and Virginia seek SIP credit in rate-of-progress and 
attainment planning for the Metropolitan Washington, DC 1-hour ozone 
nonattainment area (the Washington area). The intended effect of this 
action is to approve SIP revisions submitted by Maryland and Virginia 
which establish certain non-regulatory measures. The non-regulatory 
measures include use of low-or-no-volatile organic compound (VOC) 
content paints by certain State and local government agencies; 
auxiliary power units on locomotives; sale of reformulated consumer 
products in the Northern Virginia area; accelerated retirement of 
portable fuel containers by certain State and local government 
agencies; and, renewable energy measures (wind-power purchases by 
certain local government agencies).

DATES: This final rule is effective on June 13, 2005.

ADDRESSES: EPA has established a docket for each of the SIP revisions 
subject to this action under Regional Material in EDocket (RME) ID 
Numbers R03-OAR-2004-MD-0001 and R03-OAR-2004-VA-0005. All documents in 
the docket are listed in the RME index at http://www.docket.epa.gov/rmepub/. Once in the system, select ``quick search,'' then key in the 
appropriate RME identification number. 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 in RME 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 the Maryland Department of the Environment, 
1800 Washington Boulevard, Suite 705, Baltimore, Maryland 21230; and 
the Virginia

[[Page 24988]]

Department of Environmental Quality, 629 East Main Street, Richmond, 
Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Christopher Cripps, (215) 814-2179, or 
by e-mail at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On December 23, 2004 (69 FR 76889), EPA published a notice of 
proposed rulemaking (NPR) for the State of Maryland and for the 
Commonwealth of Virginia. The NPR proposed approval of non-regulatory 
measures that include use of low-or-no-VOC content paints by certain 
State and local government agencies; auxiliary power units on 
locomotives; sale of reformulated consumer products in the Northern 
Virginia area; accelerated retirement of portable fuel containers by 
certain State and local government agencies; and, renewable energy 
measures (wind-power purchases by certain local government agencies). 
On February 19, 2004 and February 25, 2004, respectively, the Maryland 
Department of the Environment (MDE) and the Virginia Department of 
Environmental Quality (VA DEQ) each submitted the formal revisions to 
their SIPs.

II. Summary of SIP Revision

    The States submitted program descriptions that projected VOC and 
nitrogen oxides (NOX) tons per day (TPD) emission reductions 
attributable to each specific measure. Those estimates are provided in 
Table 1.

Table 1.--Emission Reductions Creditable From Voluntary Emission Reduction Program Measures for the Metropolitan
                                               Washington DC Area
----------------------------------------------------------------------------------------------------------------
                                                                                                 Implementation
                    Measure                                State             VOC TPD  NOX TPD         date
----------------------------------------------------------------------------------------------------------------
Gas Can Replacement Program:
    Maryland National Capital Parks & Planning  MD.........................  0.0027   .......             4/2005
     Commission, Prince George's County.
    Montgomery County.........................  ...........................  0.00088  .......            12/2004
    Prince George's County....................  ...........................  0.00231  .......             1/2004
                                               ------------------------------
        Maryland totals.......................  ...........................  0.00589  0.00     .................
-----------------------------------------------
    Fairfax County............................  VA.........................  0.00277  .......             5/2005
    City of Fairfax...........................  ...........................  0.00138  .......             7/2004
    City of Fairfax Contractors...............  ...........................  0.00060  .......             7/2004
    Prince William County.....................  ...........................  0.00090  .......             5/2005
    Arlington County..........................  ...........................  0.00210  .......             5/2005
                                               ------------------------------
        Virginia totals.......................  ...........................  0.00565  0.00     .................
-----------------------------------------------
Total Maryland and Virginia Area-wide           ...........................  0.01     0.00     .................
 Reductions--Gas Can Replacement Program
 (Rounded).
-----------------------------------------------
Sale of Reformulated Consumer Products........  VA.........................  3.00     0.00                1/2005
-----------------------------------------------
Low-VOC Paints Program:
    Prince George's County....................  MD.........................  0.002    .......             5/2005
    Maryland National Capital Parks & Planning  ...........................  0.006    .......            12/2003
     Commission, Prince George's County.
    MDOT Traffic Marking Coatings.............  ...........................  0.149    .......            12/2003
                                               ------------------------------
        Maryland totals.......................  ...........................  0.157    0.00     .................
                                               -----------------------------                  ------------------
        Virginia totals--Fairfax County.......  VA.........................  0.017    .......             4/2004
-----------------------------------------------
Total Maryland and Virginia Area-wide           ...........................  0.17     0.00     .................
 Reduction--Low-VOC Paints Program (Rounded).
-----------------------------------------------
Montgomery County Regional Wind Power Purchase  MD.........................  0.00     0.05               12/2004
Auxiliary Power Units on Locomotives..........  VA.........................  0.01     0.13                3/2004
Arlington County Regional Wind Power Purchase.  VA.........................  0.00     0.00                5/2005
----------------------------------------------------------------------------------------------------------------

    A more detailed analysis of all these voluntary emission reduction 
program measures can be found in the Technical Support Document (TSD) 
for this action. That TSD is included in both the hard copy and E-
docket for this rulemaking.

III. General Information Pertaining to SIP Submittals From the 
Commonwealth of Virgina

    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

[[Page 24989]]

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 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, 
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.
    Other specific requirements of the bundle of voluntary emission 
reduction program measures and the rationale for EPA's proposed action 
are explained in the NPR and will not be restated here.

IV. Public Comment

    We received four sets of comments via letter and/or electronically 
during the public comment period. None of the comments were adverse to 
our proposed approval.
    Three of the letters strongly supported the proposed approval of 
the nonregulatory measures in the Maryland and Virginia SIP revisions. 
Two of these letters observed that there is nothing voluntary about the 
State commitments in these SIP revisions even though these measures are 
titled ``voluntary measures'' by EPA. EPA agrees that the observation 
made in the comments is correct and reiterates EPA's policy regarding 
such measures. EPA's ``voluntary measures'' policies are to cover those 
emissions reduction strategies that are undertaken but are not made 
enforceable against the source through a traditional regulatory process 
or those strategies which are new or innovative. However, EPA ensures 
that the measures are enforceable against the state by requiring the 
state to commit to monitor the implementation and effectiveness of the 
measure and, where a reduction credit is sought by the SIP, to make-up 
any shortfall in emissions reductions.
    The fourth letter was not opposed or adverse to the proposed action 
but rather asserted that there was a typographical error with regards 
to the emission reduction credit claimed by the Commonwealth of 
Virginia for the Arlington County wind power purchase measure. The 
comment letter asserts that the SIP sought no reduction credit from the 
measure. EPA has reexamined the SIP revision submitted by Virginia and 
agrees that EPA mistakenly proposed to credit the Arlington County wind 
power purchase measure with emission reduction credit. On page 7-78 of 
section 7.6 entitled ``Voluntary Bundle'' of the document entitled 
``Plan to Improve Air Quality in the Washington, DC-MD-VA Region, State 
Implementation Plan (SIP) ``Severe Area SIP'' Demonstrating Rate of 
Progress for 2002 and 2005; Revision to 1990 Base Year Emissions; and 
Severe Area Attainment Demonstration for the Washington DC-MD-VA 
Nonattainment Area'' (dated February 19, 2004) in Virginia's February 
25, 2004 SIP revision plainly states that ``credits will not be awarded 
for purchases in Virginia jurisdictions.''
    Table 1 of this document reflects this change from Table 2 of the 
NPR.

V. Final Action

A. State of Maryland

    EPA's review of this material indicates that Maryland's February 
19, 2004 SIP submittal of non-regulatory voluntary emission reduction 
program measures for the Washington area meet the applicable 
requirements of EPA guidance and policy for approval. EPA is approving 
the following voluntary emission reduction program measures into the 
Maryland SIP: Montgomery County Regional Wind Power Purchase, Low-VOC 
Paints Program, and Gas Can Replacement Program. Specifically, EPA is 
approving those measures found in section 7.6 entitled ``Voluntary 
Bundle'' of the document entitled ``Plan to Improve Air Quality in the 
Washington, DC-MD-VA Region, State Implementation Plan (SIP) ``Severe 
Area SIP'' Demonstrating Rate of Progress for 2002 and 2005; Revision 
to 1990 Base Year Emissions; and Severe Area Attainment Demonstration 
for the Washington DC-MD-VA Nonattainment Area'' (dated February 19, 
2004) and Appendix J to this plan. This February 19, 2004 document and 
its Appendix J were submitted to EPA by Maryland on February 19, 2004. 
EPA is crediting the Maryland SIP with the emission reductions for 
these measures shown in Table 2 of this document for the Washington 
area.

B. Commonwealth of Virginia

    EPA's review of this material indicates that Virginia's February 
25, 2004 SIP submittal of non-regulatory voluntary emission reduction 
program measures for the Washington area meet the applicable 
requirements of EPA guidance and policy for approval. EPA is approving 
the following voluntary emission reduction program measures into the 
Virginia SIP: Low-VOC Paints Program, Sale of Reformulated Consumer 
Products, Gas Can Replacement Program, Remote Sensing Device Program, 
Arlington County Regional Wind Power Purchase, Auxiliary Power Units on 
Locomotives, Alternative Fueled Vehicle (AFV) Purchase Program, and 
Diesel Bus Retrofit Program. Specifically, EPA is approving those 
measures found in section 7.6 entitled ``Voluntary Bundle'' of the 
document entitled ``Plan to Improve Air Quality in the Washington, DC-
MD-VA Region, State Implementation Plan (SIP) ``Severe Area SIP'' 
Demonstrating Rate of Progress for 2002 and 2005; Revision to 1990 Base 
Year Emissions; and Severe Area

[[Page 24990]]

Attainment Demonstration for the Washington DC-MD-VA Nonattainment 
Area'' (dated February 19, 2004) and Appendix J to this plan. This 
February 19, 2004 document and its Appendix J were submitted to EPA by 
Virginia on February 25, 2004. EPA is crediting the Virginia SIP with 
the emission reductions shown in Table 2 of this document for the 
Washington area.

VI. 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 July 11, 2005. 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 to approve Maryland and Virginia voluntary 
emission reduction program measures 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: May 2, 2005.
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 V--Maryland

0
2. In Sec. 52.1070, the table in paragraph (e) is amended by adding the 
entry for the Non-Regulatory Voluntary Emission Reduction Program at 
the end of the table to read as follows:


Sec.  52.1070  Identification of plan.

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
                                                            State
    Name of non-regulatory SIP          Applicable        submittal     EPA approval date        Additional
             revision                 geographic area        date                                explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Non-Regulatory Voluntary Emission  Washington, DC            2/19/04  5/12/05 [Insert page  The nonregulatory
 Reduction Program.                 severe 1-hour ozone                number where the      measures found in
                                    nonattainment area.                document begins].     section 7.6 and
                                                                                             Appendix J of the
                                                                                             plan.
----------------------------------------------------------------------------------------------------------------


[[Page 24991]]

Subpart VV--Virginia

0
3. In Sec. 52.2420, the table in paragraph (e) is amended by adding the 
entry for the Non-Regulatory Voluntary Emission Reduction Program at 
the end of the table to read as follows:


Sec.  52.2420  Identification of plan.

* * * * *

----------------------------------------------------------------------------------------------------------------
                                                            State
    Name of non-regulatory SIP          Applicable        submittal     EPA approval date        Additional
             revision                 geographic area        date                                explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Non-Regulatory Voluntary Emission  Washington, DC          2/25/2004  5/12/05 [Insert page  The nonregulatory
 Reduction Program.                 severe 1-hour ozone                number where the      measures found in
                                    nonattainment area.                document begins].     section 7.6 and
                                                                                             Appendix J of the
                                                                                             plan.
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[FR Doc. 05-9315 Filed 5-11-05; 8:45 am]
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