[Federal Register Volume 70, Number 94 (Tuesday, May 17, 2005)]
[Proposed Rules]
[Pages 28260-28264]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-9784]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R03-OAR-2005-VA-0005; FRL-7913-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia, Attainment Demonstration for the Northern Shenandoah Valley 
Ozone Early Action Compact Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) 
revision submitted by the Commonwealth of Virginia. This proposed 
revision consists of an Early Action Compact (EAC) Plan that will 
enable the Northern Shenandoah Valley Ozone EAC Area to demonstrate 
attainment and maintenance of the 8-hour ozone national ambient air 
quality standard (NAAQS). This action is being taken under the Clean 
Air Act (CAA).

DATES: Written comments must be received on or before June 16, 2005.

ADDRESSES: Submit your comments, identified by Regional Material in 
EDocket (RME) ID Number R03-OAR-2005-VA-0005 by one of the following 
methods:
    A. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    B. Agency Web site: http://www.docket.epa.gov/rmepub/ RME, EPA's 
electronic public docket and comment system, is EPA's preferred method 
for receiving comments. Follow the on-line instructions for submitting 
comments.
    C. E-mail: [email protected].
    D. Mail: R03-OAR-2005-VA-0005, David Campbell, Chief, Air Quality 
Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, 
Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
    E. 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 RME ID No. R03-OAR-2005-VA-
0005. EPA's policy is that all comments received will be included in 
the public docket without change, and may be 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 RME, 
regulations.gov or e-mail. The EPA RME and the Federal regulations.gov 
Web sites are 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 RME or 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 
RME index at http://www.docket.epa.gov/rmepub/. 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 RME 
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: Rose Quinto, (215) 814-2182, or by e-
mail at [email protected].

SUPPLEMENTARY INFORMATION: On December 20, 2004, the Commonwealth of 
Virginia submitted a revision to its SIP. This revision consists of an 
Early Action Plan (EAP) for the Northern Shenandoah Valley Ozone EAC 
Area. On February 15, 2005, the Commonwealth supplemented its December 
20, 2004 submittal by providing a copy of the record of hearing and 
summary of testimony during its rule adoption process.

I. Background

    In 1997, EPA established a new 8-hour ozone NAAQS that addresses 
the longer-term impact of ozone at lower levels. As such, the new 
standard is set at a lower level, 0.08 parts per million (ppm) than the 
previous 1-hour standard, 0.120 ppm, and is more protective of human 
health. Attainment of the 8-hour ozone standard is determined by 
averaging three years of the fourth highest 8-hour ozone levels as 
recorded by ambient air quality monitor(s) in an area. This number, 
called the design value, must be lower than 85 parts per billion (ppb) 
in order for the area to comply with the ozone standard. Currently, the 
Northern Shenandoah Valley EAC Area, which consists of the City of 
Winchester and Frederick County, has an official design value based on 
quality-assured air quality data for the period 2001 to 2003 of 85 
ppb.\1\
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    \1\ To attain the 8-hour national ambient air quality standard 
(NAAQS) for ozone requires the fourth highest 8-hour daily maximum 
ozone concentration, average over three consecutive years, to be 
<=80 parts per billion (ppb) at each monitoring site (See 40 CFR 
Part 50.10, Appendix I, paragraph 2.3). Because of the stipulations 
for rounding significant figures, this equates to a modeled 
attainment target of <= 84 ppb. Because non-significant figures are 
truncated, a modeling estimate of < 85 ppb is equivalent to <= 84 
ppb.
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    To begin to address the elevated ozone concentrations in the 
Northern Shenandoah Valley Area, the Virginia Department of 
Environmental Quality (VADEQ) investigated voluntary actions that could 
be implemented proactively to improve air quality. Virginia found the 
most promising of all of the options it explored to be EPA's EAC 
program. EACs are voluntary agreements entered into by affected local 
jurisdictions, state regulatory agencies, and EPA to develop EAPs to 
reduce ozone precursor pollutants, such as nitrogen oxides 
(NOX) and volatile organic compounds (VOCs) and improve 
local air quality. The goal of the EAP is to bring about a positive 
change to local air quality on a schedule that is faster than the 
traditional regulatory nonattainment area designation and air quality 
planning process. These plans include the same components of 
traditional SIPs for nonattainment areas: emissions inventories, 
control strategies, schedules and commitments, and a demonstration of 
attainment based on photochemical modeling.

[[Page 28261]]

    The goal of an EAP is to develop a comprehensive strategy that will 
allow an area to achieve attainment of the 8-hour ozone standard by 
2007. This goal is accomplished by selecting and implementing local 
ozone precursor pollutant control measures and other state and 
nationally-implemented control measures that reduce emissions and 
allows the area to comply with the NAAQS for ozone. Areas successful in 
developing a plan that demonstrates attainment of the 8-hour ozone 
standard by 2007 will receive a deferral of the effective date of the 
nonattainment designation for the area from EPA. This deferral will 
remain in place as long as certain milestones are met, such as 
implementation of local controls by 2005. If the interim milestones are 
met and the area demonstrates attainment of the standard during the 
period from 2005 to 2007, based on quality-assured air quality data, 
then the nonattainment designation for the relevant area will be 
withdrawn by EPA and the area will face no further regulatory 
requirements. If an area fails at any point in the process, the 
nonattainment designation will become effective, along with all of the 
associated regulatory requirements of such a designation.
    In December 2002, a number of states entered into EAC agreements, 
pledging to reduce emissions earlier than required by the Act for 
compliance with the 8-hour ozone standard. These states and local 
communities had to meet specific criteria and agreed to meet certain 
milestones for development and implementation of their individual EAC 
agreements. States with communities participating in the EAC program 
had to submit plans for meeting the 8-hour ozone standard by December 
31, 2004, rather than the June 15, 2007 deadline applicable to all 
other areas not meeting the standard. The EACs required communities to 
develop and implement air pollution control strategies, account for 
emissions growth, and demonstrate attainment and maintenance of the 8-
hour ozone standard. Greater details on the EAC program are explained 
in EPA's December 16, 2003 (68 FR 70108) proposed Federal Register 
notice entitled, ``Deferral of Effective Date of Nonattainment 
Designations for 8-hour Ozone National Ambient Air Quality Standards 
for Early Action Compact Areas.'' In December 2002, the Northern 
Shenandoah Valley Area entered into an EAC with both the Commonwealth 
and EPA. This compact was signed by all parties involved and then 
submitted to EPA by the required date of December 31, 2002.
    On April 15, 2004, EPA designated all areas for the 8-hour ozone 
standard. The EPA deferred the effective date of nonattainment 
designations for EAC areas that were violating the 8-hour standard, but 
continued to meet their established EAC milestones. On April 30, 2004 
(69 FR 23858), EPA published its formal air quality designations and 
classifications for the 8-hour ozone standard. This action included the 
deferral of the effective date for all nonattainment areas that entered 
into EACs and developed EAPs, including the Northern Shenandoah Valley 
EAC Area. Specifically, the Winchester/Frederick Area was designated as 
a ``basic'' nonattainment area with the effective date of the 
designation deferred until September 30, 2005. In a separate notice, 
EPA expects to continue to officially defer the effective date of the 
nonattainment designation for this Area, among others, in the future so 
long as the Area continues to fulfill its EAC obligations, including 
semi-annual status reporting requirements, implementation of the 
measures in its EAP by December 31, 2005, and a progress assessment by 
June 30, 2006. EPA anticipates extending the currently effective 
deferral for all EAC areas from September 30, 2005 until December 31, 
2006, provided the above conditions are met.

II. Summary of SIP Revision

A. Content of the Northern Shenandoah Valley EAC Area Attainment 
Demonstration

    As part of its EAC plan, Virginia developed an attainment 
demonstration supported by an ozone photochemical modeling study for 
the Northern Shenandoah Valley EAC Area. The attainment demonstration 
identifies a set of measures that will result in emission reductions 
and provides analyses that predict that the measures result in ambient 
air quality concentrations that meet the 8-hour ozone standard in the 
Northern Shenandoah Valley EAC Area.
    The attainment demonstration was supported by results of a 
photochemical modeling analysis and technical documentation for all 
ozone monitors in the Northern Shenandoah Valley EAC Area. EPA believes 
that VADEQ's 8-hour ozone photochemical modeling study developed for 
the Northern Shenandoah Valley EAC Area meets EPA's current modeling 
requirements. The Commonwealth has adequately followed all relevant EPA 
guidance in demonstrating that the Northern Shenandoah Valley EAC Area 
will attain the 8-hour ozone NAAQS in 2007, and continue to do so in 
2012. The modeling results predict the maximum 2007 8-hour ozone design 
value for this area to be 81.8 ppb, which is less than what is needed 
(<=84 ppb) to show modeled attainment of the 8-hour ozone NAAQS.
    The attainment modeling information presented in this notice should 
be used in conjunction with the Commonwealth's SIP submittal and EPA's 
technical support document (TSD), as certain modeling requirements 
performed by the State (i.e., details of the quality assurance 
procedures performed, detailed analysis of data suitability, complete 
listings of all data inputs and outputs, etc.) are not reproduced in 
this notice.

B. Measures Included in the EAC SIP

    The Northern Shenandoah Valley EAP is designed to enable a 
proactive approach to ensuring attainment of the 8-hour NAAQS. Using 
the EAP approach, the Northern Shenandoah Valley EAC Area will be 
implementing emission-reduction measures directed at attaining the 8-
hour standard starting in 2005. The Area is then required to 
demonstrate compliance with the 8-hour ozone standard by 2007, and 
maintain compliance with the standard at least through 2012. Compliance 
with the standard will be determined using ozone monitoring data.
    The EAP control measures for the Northern Shenandoah Valley EAC 
Area consist of local, state and Federal emission reduction strategies. 
Control measures to be implemented on the local level that were 
included in the demonstration of attainment for the Area include a 
comprehensive local ozone action day/public awareness program. This 
strategy is a combination of activities to reduce ozone precursors 
which includes: a general public awareness program; a school-based 
awareness program; an educational and promotional campaign; an 
employer-based ozone action day campaign; dynamic message signs; video 
monitor deployment; lawn and garden equipment usage restrictions for 
state and local governments; other state and local government 
restrictions (e.g. refueling guidelines, pesticide application 
restrictions); and voluntary restrictions by the general public (e.g. 
lawn and garden equipment usage, refueling).
    Virginia has also submitted a number of locally-implemented 
measures in their EAP that, although not included in the attainment 
demonstration, will provide additional air quality benefits to the 
Northern Shenandoah Valley EAC Area and surrounding communities. These 
control measures include: vehicle miles of travel (VMT) reduction

[[Page 28262]]

programs--programs/activities designed to reduce VMT, enhanced/expanded 
Northern Shenandoah Valley Regional Commission ridesharing program; 
open burning restrictions during days with elevated predicted ozone 
concentrations; engine-idling restrictions for public and private 
diesel trucks; advanced emissions control technology for area school 
bus fleets; and voluntary emission reductions by local industries.
    In addition to the local strategies, several State and Federal 
actions have or will produce substantial ozone precursor emissions 
reductions both inside and outside of the local EAC area. These state 
and Federal actions are aimed at reducing local emissions by limiting 
the transport of pollution into the area from emissions sources located 
outside of the local area. These strategies, when combined with the 
local strategies, are expected to lower area ozone concentrations to 
the level at or below the ozone standard.
    Control measures to be implemented on the state level that were 
included in the attainment demonstration for the Area include: VOC 
reasonably available control technology (RACT) requirements for 
selected point and area sources in the City of Winchester and Frederick 
County and State cutback asphalt regulations that will control VOC 
emissions in the City of Winchester and Frederick County.
    Virginia has also submitted a number of State-supported measures in 
their EAP that were not included in the attainment demonstration but 
are expected to provide additional air quality benefits to the Northern 
Shenandoah Valley EAC Area. These control measures include: The 
National Low Emission Vehicle Program (NLEV) and the utilization of an 
enhanced ozone forecasting tool for the Northern Shenandoah Valley EAC 
Area to support the local ozone action days program and associated 
voluntary emission reduction efforts.
    The NOX SIP Call (63 FR 57356, October 27, 1998) 
required states to implement reductions necessary to address the ozone 
transport problem, and on June 25, 2002, Virginia submitted its 
NOX Budget Trading Program to meet its Phase I 
NOX SIP Call obligations. Virginia's Phase I program applies 
to electric generating units that serve a generator greater than 25 
megawatts and to industrial units greater than 250 mmBTU/hr. On July 8, 
2003 (68 FR 40520), EPA conditionally approved Virginia's 
NOX Budget Trading Program, and fully approved the program 
on August 25, 2004 (69 FR 52174). Virginia began implementing its 
NOX Budget Trading Program during the 2004 ozone season. The 
photochemical modeling that demonstrates attainment for the Northern 
Shenandoah Valley Area relies upon expected benefits from the 
NOX Budget Trading Program throughout the modeling domain.
    To help achieve attainment in the Area, VADEQ has recently adopted 
NOX reasonably available control technology (RACT) 
requirements for certain sources located in the Northern Shenandoah 
Valley EAC Area. At this time, Virginia has formally established 
NOX RACT requirements for one source located in the Northern 
Shenandoah Valley EAC Area. The Commonwealth has submitted the source-
specific NOX RACT requirements to EPA for approval into the 
Virginia SIP. On April 27, 2005 (70 FR 21621), EPA published a final 
rulemaking approving the source-specific-specific NOX RACT 
determination for the Northern Shenandoah Valley EAC Area.
    At the Federal level, numerous EPA programs have been or will be 
implemented to reduce ozone pollution. These programs that were 
included in the modeled demonstration attainment cover all the major 
categories of ozone generating pollutants and are designed to assist 
many areas that need to come into compliance with the Federal ozone 
standard. These include stationary and area source controls (low-VOC 
industrial/architectural paints, vehicle paints, metal-cleaning 
products, and consumer products); motor vehicle emissions controls for 
VOCs and NOX (NLEV, Tier 2 vehicle requirements and heavy-
duty diesel standards); and non-road vehicle and equipment standards to 
control VOCs and NOX emissions (lawn and garden equipment, 
construction equipment, boat engines and locomotives).
    All these measures have been developed to address the creation of 
ozone producing emissions in local areas as well as to lessen the 
regional transport of ozone as a comprehensive approach to reducing 
ozone levels. A detailed description of all the control measures, 
including those that were included in the attainment demonstration, as 
well as the additional measures that are expected to assist the area in 
meeting attainment of the standard in 2007, can be found in the TSD 
prepared in support of this rulemaking.

C. Maintenance for Growth

    Consistent with EPA guidance, the EAP also contains components to 
ensure maintenance of the 8-hour ozone standard through 2012, five 
years beyond the 2007 attainment date. The Northern Shenandoah Valley 
EAC Area has developed an emissions inventory for the year 2012, as 
well as a continuing planning process to address this essential part of 
the plan. Due to the emission control measures identified in the EAP, 
the emissions inventory predicted an overall reduction in emissions 
through 2012. From 1999 to 2007, emissions of VOCs are estimated to 
decline by 17.9 percent and emissions of NOX are estimated 
to be reduced by 21.2 percent. By 2012, emissions are predicted be 0.6 
percent less than those modeled in 2007 for VOCs, and 20.0 percent less 
than those modeled in 2007 for NOX. Using air quality models 
to anticipate the impact of growth, as well as the Federal, state-
assisted, and locally-implemented measures to reduce emissions, the 
Commonwealth of Virginia has projected the Area will be in attainment 
of the 8-hour ozone standard in 2007 and will remain in attainment 
through 2012.
    To fulfill the continuing planning process that will ensure that 
the Northern Shenandoah Valley EAC Area will maintain the 8-hour ozone 
standard through 2012, the Northern Shenandoah Valley EAP establishes a 
commitment and mechanism to work with local stakeholders to identify 
and require additional measures to further reduce ozone precursor 
emissions. In addition, the EAC signatories and implementing agencies 
will review all EAC activities and report on these results in semi-
annual reports beginning in June 2006. The semi-annual reports will 
track and document, at a minimum, control strategy implementation and 
results, monitoring data, and future plans. Furthermore, as part of the 
SIP submittal, the Northern Shenandoah Valley Area commits to submit 
periodic updates to VADEQ and EPA on the implementation status and 
results of the local control program with sufficient details to make 
program sufficiency determinations. Although not required by the EPA, 
the Northern Shenandoah Valley EAP contains contingency measures which 
could be implemented in response to any unexpected shortfall in 
anticipated reductions. These additional strategies include the 
implementation of one or more of the following Ozone Transport 
Commission (OTC) rules: Portable Container Rule, Architectural/
Industrial Maintenance Coatings Rule, Mobile Equipment Repair and 
Refinishing Rule, Solvent Cleaning Operations Rule, and Consumer 
Products Rule.

[[Page 28263]]

III. General Information Pertaining to SIP Submittal 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 ``[regarding 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 
``[to 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. Proposed Action

    EPA is proposing to approve the attainment demonstration and the 
EAP for the Northern Shenandoah Valley EAC Area in the Commonwealth of 
Virginia. The modeling of ozone and ozone precursor emissions from 
sources affecting the Northern Shenandoah Valley EAC Area demonstrates 
that the specified control strategies will provide for attainment of 
the 8-hour ozone NAAQS by December 31, 2007 and maintenance of that 
standard through 2012. To date, the Northern Shenandoah Valley EAC Area 
has met all of its EAC milestones and, as long as the Area continues to 
meet the agreed upon milestones, the nonattainment designation for this 
Area will be deferred until September 30, 2005. 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 Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed 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 proposes to approve state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this proposed 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 proposes to approve 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 proposed rule also does 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), nor will it 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 proposes to approve 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 
proposed 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

[[Page 28264]]

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 proposed 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 proposed rule pertaining to the attainment demonstration 
and EAP for the Northern Shenandoah Valley Ozone EAC Area does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Nitrogen dioxide, 
Ozone, Reporting and record-keeping requirements, Volatile organic 
compounds.

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

    Dated: May 3, 2005.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. 05-9784 Filed 5-16-05; 8:45 am]
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