[Federal Register Volume 70, Number 158 (Wednesday, August 17, 2005)]
[Rules and Regulations]
[Pages 48280-48283]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-16293]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R03-OAR-2005-VA-0005; FRL-7954-4]


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: Final rule.

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SUMMARY: EPA is taking final action to approve a revision to the 
Commonwealth of Virginia State Implementation Plan (SIP). This 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 (NAAQS) 
standard. This action is being taken under the Clean Air Act (CAA or 
Act).

DATES: This final rule is effective on September 16, 2005.

ADDRESSES: EPA has established a docket for this action under Regional 
Material in EDocket (RME) ID Number R03-OAR-2005-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 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:

I. Background

    On May 17, 2005 (70 FR 28260), EPA published a notice of proposed 
rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed 
approval of the attainment demonstration and the Early Action Plan 
(EAP) for the Northern Shenandoah Valley Ozone EAC Area, which consists 
of the City of Winchester and Frederick County. The formal SIP revision 
was submitted by the Virginia Department of Environmental Quality on 
December 20, 2004 and supplemented on February 15, 2005. Other 
specifics of the Commonwealth's SIP revision for the Northern 
Shenandoah Valley Ozone EAC Area, and the rationale for EPA's proposed 
action are explained in the NPR and will not be restated here. On June 
16, 2005, EPA received adverse comments on its May 17, 2005 NPR. A 
summary of the comments submitted and EPA's responses are provided in 
Section II of this document.

II. Summary of Public Comments and EPA Responses

    Comment: Several commenters expressed support for the compact 
process, the goal of clean air sooner, the incentives and flexibility 
the program provides for encouraging early reductions of ozone-forming 
pollution, and the deferred effective date of nonattainment 
designations.
    Response: EPA acknowledges the comments of support for our final 
action.
    Comment: One commenter opposes the approval of the SIP revision for 
the Northern Shenandoah Valley Ozone EAC Area because the Area is in 
violation of the 8-hour ozone standard. The commenter also states that 
the SIP revision provides for the deferment of a nonattainment 
designation until a future date, potentially as late as December 31, 
2007, and relieves the Area of obligations under Title I, part D of the 
CAA. Although the commenter is supportive of the goal of addressing 
proactively the public health concerns associated with ozone pollution, 
the commenter believes that EPA does not have the legal authority to 
defer effective dates of designations or to allow areas to be relieved 
of obligations under Title I, part D of the CAA while they are 
violating the 8-hour ozone standard, or are designated nonattainment of 
that standard.
    Response: EPA first announced the EAC process in a June 19, 2002 
letter from Gregg Cooke, Administrator, EPA Region VI to Robert Huston, 
Texas Commission on Environmental Quality, followed by a November 14, 
2002 memorandum from Jeffrey R. Holmstead, Assistant Administrator, 
EPA's Office of Air and Radiation to the EPA Regional Administrators, 
entitled, ``Schedule for 8-Hour Ozone Designations and its Effect on 
Early Action Compacts.'' EPA formalized the EAC process in the 
designation rulemaking on April 30, 2004 (69 FR 23858). In the 
designation rule, EPA designated 14 EAC areas as nonattainment, but 
deferred the

[[Page 48281]]

effective date of the designation until September 30, 2005. The EAC 
program gives local areas the flexibility to develop their own approach 
to meeting the 8-hour ozone standard, provided the participating 
communities are serious in their commitment to control emissions from 
local sources earlier than the CAA would otherwise require. By 
involving diverse stakeholders, including representatives from 
industry, local and State governments, and local environmental 
citizens' groups, a number of communities are discussing for the first 
time the need for regional cooperation in solving air quality problems 
that affect the health and welfare of its citizens. People living in 
these areas that realize reductions in pollution levels sooner will 
enjoy the health benefits of cleaner air sooner than might otherwise 
occur. EPA believes this proactive approach involving multiple, diverse 
stakeholders is beneficial to the citizens of the area by raising 
awareness of the need to adopt and implement measures that will reduce 
emissions and improve air quality.
    EPA disagrees with the comments that this action on the SIP 
revision for the Northern Shenandoah Valley Ozone EAC Area defers the 
nonattainment designation for this Area. In our May 17, 2005 NPR (70 FR 
28260), EPA proposed approval of an attainment demonstration and EAP 
SIP revision for the Northern Shenandoah Valley Ozone EAC Area. This 
SIP revision includes an attainment demonstration which demonstrates 
attainment of the 8-hour ozone NAAQS in the Northern Shenandoah Valley 
Ozone EAC Area by December 31, 2007, and also demonstrates maintenance 
of the 8-hour NAAQS for five years following the attainment date. As 
noted in the proposed action, approval of the attainment demonstration 
and EAP constitutes one of several milestones that an area must meet in 
order to participate in the EAC process. While approval of this plan is 
a prerequisite for an extension of the deferred effective date of the 
designation of this Area, see 40 CFR 81.300(e)(3), neither the proposed 
approval of this SIP nor this final action approving the SIP purports 
to extend the deferral of the effective date of the nonattainment 
designation for this Area. In a separate rulemaking (69 FR 23858, April 
30, 2004), EPA deferred the effective date of the air quality 
designations of all 14 EAC areas to September 30, 2005. In the April 
30, 2004 final rule, EPA responded to comments received during the 
comment period for this final rule. In a separate proposed rule (70 FR 
33409, June 8, 2005), EPA proposed to extend the deferral of the 
effective date of the air quality designations for these 14 EAC areas. 
EPA will consider comments regarding its legal authority in the final 
rule associated with the June 8, 2005 proposed rule.
    Regardless of whether EPA's separate actions deferring the 
effective date of the nonattainment designation for this Area are 
appropriate, EPA sees no basis to disapprove the attainment and 
maintenance plan. The provisions of the statute generally provide that 
areas must demonstrate attainment and maintenance of the NAAQS. See 
e.g., CAA section 110(a)(1) (requiring areas to submit plans providing 
for ``implementation, maintenance, and enforcement'' of each NAAQS) and 
CAA section 172(c)(1) (requiring nonattainment areas to submit plans 
demonstrating attainment of the NAAQS). The commenter has provided no 
substantive reason why this plan does not demonstrate attainment and 
maintenance of the 8-hour standard. Therefore, this action approving 
the attainment demonstration and maintenance plan is appropriate.

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 ``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.

[[Page 48282]]

IV. Final Action

    EPA is approving the attainment demonstration and the EAP for the 
Northern Shenandoah Valley Ozone EAC Area. The modeling of the ozone 
and ozone precursor emissions from sources affecting the Northern 
Shenandoah Valley Ozone 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.

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 17, 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, approving the attainment demonstration and the EAP for 
the Northern Shenandoah Valley Ozone EAC Area, 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: August 9, 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 VV--Virginia

0
2. In Sec.  52.2420, the entry for the Attainment Demonstration and 
Early Action Plan for the Northern Shenandoah Valley Ozone Early Action 
Compact Area in paragraph (e) is added at the end of the table to read 
as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (e) * * *

                            EPA Approved Nonregulatory and Quasi-Regulatory Material
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                                                                State
Name of non-regulatory SIP revision   Applicable geographic   submittal      EPA approval date      Additional
                                              area               date                               explanation
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[[Page 48283]]

 
                                                  * * * * * * *
Attainment Demonstration and Early   City of Winchester and    12/20/04,  8/17/05 [Insert         ..............
 Action Plan for the Northern         Frederick County.         02/15/05   Federal Register page
 Shenandoah Valley Ozone Early                                             number where the
 Action Compact Area.                                                      document begins].
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[FR Doc. 05-16293 Filed 8-16-05; 8:45 am]
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