[Federal Register Volume 70, Number 175 (Monday, September 12, 2005)]
[Proposed Rules]
[Pages 53746-53752]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17928]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[R03-OAR-2005-VA-0007;FRL-7966-6


Approval and Promulgation of Air Quality Implementation Plans; 
VA; Redesignation of the City of Fredericksburg, Spotsylvania County, 
and Stafford County Ozone Nonattainment Area to Attainment and Approval 
of the Area's Maintenance Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a redesignation request and a 
State Implementation Plan (SIP) revision submitted by the Commonwealth 
of Virginia. Virginia is requesting that the city of Fredericksburg, 
Spotsylvania County, and Stafford County (the Fredericksburg 
Nonattainment Area) be redesignated as attainment for the eight-hour 
ozone national ambient air quality standard (NAAQS). The Commonwealth's 
SIP revision establishes a maintenance plan for the Fredericksburg 
Nonattainment Area that provides requirements for continued attainment 
of the eight-hour ozone NAAQS for the next 10 years. EPA is proposing 
approval of the redesignation request and revision to the Virginia SIP 
in accordance with the requirements of the Clean Air Act (CAA).

DATES: Written comments must be received on or before October 12, 2005.

ADDRESSES: Submit your comments, identified by Regional Material in 
EDocket (RME) ID Number R03-OAR-2005-VA-0007 by one of the following 
methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
on-line instructions for submitting comments.
    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.
    E-mail: [email protected].
    Mail: R03-OAR-2005-VA-0007, David Campbell, Chief, Air Quality 
Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, 
Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
    Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and

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special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to RME ID No. R03-OAR-2005-VA-
0007. EPA's policy is that all comments received will be included in 
the public docket without change, and may be made available online at 
http://www.docket.epa.gov/rmepub/, 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 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: Amy Caprio, (215) 814-2156, or by e-
mail at [email protected].

SUPPLEMENTARY INFORMATION: On May 2, 2005, Virginia Department of 
Environmental Quality (VADEQ) formally submitted a redesignation 
request for the Fredericksburg Nonattainment Area to attainment of the 
eight-hour NAAQS for ozone. On May 4, 2005, Virginia submitted a 
maintenance plan for the Fredericksburg Nonattainment Area as a SIP 
revision, to assure continued attainment over the next 10 years.

I. Background

    The Fredericksburg Nonattainment Area was designated as moderate 
eight-hour ozone nonattainment status on April 30, 2004 (69 FR 23857), 
based on its exceedance of the health-based standards for ozone. Under 
section 107(d)(3)(E) of the CAA, the following five criteria must be 
met for an ozone nonattainment area to be redesignated to attainment:
    1. The area must meet the ozone NAAQS.
    2. The area must have a fully approved SIP under section 110(k).
    3. The area must show improvement in air quality due to permanent 
and enforceable reductions in emissions.
    4. The area must meet all requirements applicable under section 110 
and part D.
    5. The area must have a fully approved maintenance plan under 
section 175A of the CAA.

II. Summary of Virginia's Submittal

    The following is a description of how the Commonwealth of 
Virginia's May 2, 2005 and May 4, 2005 submittals satisfy the five 
requirements of section 107(d)(3)(E). EPA will discuss its evaluation 
of the maintenance plan under its analysis of the redesignation 
request. A more detailed description of the state submittal and EPA's 
evaluation are included in a Technical Support Document (TSD) prepared 
in support of this rulemaking action. A copy of the TSD is available, 
upon request from the EPA Regional Office listed in the ADDRESSES 
section of this document.

A. Attainment of the Ozone NAAQS in the Fredericksburg Nonattainment 
Area

    Section 181(b)(2)(A) of the CAA states that the EPA Administrator 
shall determine whether an area has achieved the ozone standard based 
on the design value of that area. The design value for an area is based 
on the three-year average (2002-2004) of the monitored annual fourth-
highest daily maximum eight-hour average ozone concentration. In the 
Fredericksburg Nonattainment Area, there is one ozone monitor, located 
in Stafford County, that measures air quality with respect to ozone. 
According to the Code of Federal Regulations, 40 CFR part 50, Appendix 
I, which establishes the procedure for interpreting ozone monitoring 
data, the Fredericksburg Nonattainment Area attained the ozone standard 
for the most recent three-year period, 2002-2004. The data collected at 
the Stafford County monitor satisfies the CA requirement that the 
three-year average of the annual fourth-highest daily maximum eight-
hour average ozone concentration is less than or equal to 0.08 parts 
per million (ppm). The Commonwealth of Virginia's request for 
redesignation for the Fredericksburg Nonattainment Area indicates that 
the data was quality assured in accordance with 40 CFR part 58. The 
VADEQ uses the Aerometric Information Retrieval System (AIRS) as the 
permanent database to maintain its data and quality assures the data 
transfers and content for accuracy.

B. The Area Has a Fully Approved SIP Under Section 110(k) of the CAA

    Stafford County is the only locality of the three in the 
Fredericksburg Nonattainment Area that was subject to Federal ozone 
requirements for an one-hour ozone nonattainment area. Stafford County 
was a part of the Northern Virginia Ozone Nonattainment Area, 
therefore, subject to SIP requirements for serious (section 182(c) of 
the CAA) and severe (section 182(d) of the CAA) ozone nonattainment 
areas. Certain control measures developed to meet the severe 
nonattainment area requirements will continue to apply in Stafford 
County.
    Sections 182(a) through 182(d) of the CAA establish specific 
requirements for nonattainment areas and for areas located in the Ozone 
Transport Region (OTR). As mentioned, Stafford County is the only 
jurisdiction in the Fredericksburg Nonattainment Area that was subject 
to these provisions. Pursuant to section 110 of the CAA, EPA has 
previously approved as part of the Commonwealth of Virginia's SIP 
regulations and other measures that fully satisfy the requirements of 
section 182(a) through 182(d), as described below:
1. Section 182(d) Requirements for Areas Designated Severe and Above
    a. Requirements for annual emissions statements from industries;
    b. Preconstruction review (permit) program for new industry and 
expansions;
    c. General conformity requirements;
    d. Case-by-case control technology determinations for all major 
volatile organic compounds (VOC) and nitrogen oxides (NOx) 
sources not covered by an

[[Page 53748]]

EPA control technology guideline (CTG);
    e. Requirement for vapor recovery controls for emissions from 
filling vehicles with gasoline (Stage II);
    f. Enhanced monitoring (source emissions) program: photochemical 
assessment monitoring stations (PAMS);
    g. National Low Emissions Vehicle (NLEV);
    h. Oxygenated fuels program;
    i. Requirement for controls for all major (25 tons per year (tpy)) 
VOC sources;
    j. Requirement for controls for all major (25 tpy)) NOX 
sources; and,
    k. Requirement for major sources to pay a penalty fee.
2. Section 184(b) (Areas Located in OTR)
    a. Regulations requiring reasonably available control technology 
(RACT) with respect to all sources of VOC covered by a CTG;
    b. VOC controls on landfills;
    c. Corrections to existing regulatory program requiring controls 
for certain source types;
    d. The inclusion of Stafford County in the enhanced inspection and 
maintenance (I/M) program;
    e. VOC controls (Ozone Transport Commission rules); and,
    f. NSR for the OTR.
3. Additional Plan Submittals
    In addition to the above, the Commonwealth's SIP contains the 
following previously approved elements that support Virginia's 
attainment plan for the Fredericksburg Nonattainment Area.
    a. Comprehensive inventory of emissions;
    b. Proposed SIP revision to achieve a 15 percent reduction in VOC 
emissions for the Washington DC-MD-VA nonattainment area;
    c. Final SIP revision to achieve a 15 percent reduction in VOC 
emissions for the Washington DC-MD-VA nonattainment area;
    d. Final SIP revision, Phase I attainment plan, and revision to the 
SIP to achieve a 15 percent reduction in VOC emissions and revision to 
the 1990 base year emissions inventory for the Washington DC-MD-VA 
nonattainment area;
    e. Final SIP revision to the SIP to achieve a 15 percent reduction 
in VOC emissions for the Washington DC-MD-VA nonattainment area;
    f. Revised SIP revision, Phase I attainment plan for the Washington 
DC-MD-VA nonattainment area/appendices; and,
    g. Open burning regulations.

C. Demonstration of Permanent and Enforceable Improvement

    Between 2002 and 2004, VOC emissions were reduced by 1.5 tons per 
day (tpd) NOX emissions were reduced by 2.7 tpd, due to the 
following permanent and enforceable measures implemented or in the 
process of being implemented in the Fredericksburg Nonattainment Area:
1. Programs Current by in Effect
    a. NLEV;
    b. Open burning restrictions for Stafford County only;
    c. CTG RACT requirements for Stafford County only;
    d. Non-CTG RACT requirements for Stafford County only;
    e. Stage I and Stage II vapor recovery requirements for Stafford 
County only;
    f. Reformulated gasoline requirements for Stafford County only;
    g. Area source VOC regulations concerning portable fuel containers; 
mobile vehicle refinishing; architectural and industrial maintenance 
coatings; solvent cleaning; and, consumer product for Stafford County 
only;
    h. Motor vehicle fleet turnover with new vehicles meeting the Tier 
2 standards; and,
    i. Low-sulfur gasoline.
2. Other Mobile Programs
    Additionally, the following programs are in place and are either 
effective or due to become effective:
    a. Heavy-duty diesel on-road (2004/2007) and low-sulfur on-road 
(2006); final EPA approval January 18, 2001 (66 FR 5002); and
    b. Non-road emission standards (2008) and off-road diesel fuel 
(2007/2010); final EPA approval June 29, 2004 (69 FR 39858).
3. Additional Air Quality Improvements
    Lastly, to further improve air quality and to provide room for 
industrial and population growth while maintaining emissions in the 
area to less then 2004 levels, the Commonwealth of Virginia has 
initiated rulemaking to implement the following programs.
    a. Implement the Stage I requirements in Fredericksburg and 
Spotsylvania;
    b. Implement the open burning restriction requirements in 
Fredericksburg and Spotsylvania; and,
    c. Implement existing source CTG RACT requirements in 
Fredericksburg and Spotsylvania.
    In addition to the permanent and enforceable measures, the 
NOX Budget Training Program regulations took effect in 2003. 
There are currently no subject sources located in the Fredericksburg 
area, but this area can reasonably expect to indirectly benefit in 
terms of improved regional air quality due to this program. 
Additionally, the Clean Air Interstate Rule (CAIR), final EPA approval 
May 12, 2005 (70 FR 25161), should have positive impacts on the 
Commonwealth's air quality by the years 2009 and 2015.

D. Section 110 and Part D Requirements

    Stafford County is the only locality in the Fredericksburg 
Nonattainment Area that has been subject to Federal ozone requirements. 
Prior to the eight-hour nonattainment area designations, Stafford 
County was a part of the Northern Virginia Ozone Nonattainment Area and 
thus subject to SIP requirements for serious and severe ozone 
nonattainment areas. Therefore, Stafford County is the only area to be 
subject to section 110(a)(2) and Part D requirements that were 
applicable prior to the redesignation submittal. There are multiple 
similarities within these requirements.
1. Section 110 Requirements
    Section 110(a)(2) of the CAA contains general requirements for 
nonattainment plans. Most of the provisions of this section are the 
same as those contained in the pre-amended CAA. The Commonwealth of 
Virginia has already fulfilled all pre-amendment CAA requirements 
pertaining to Stafford County, which is the only county in the 
Fredericksburg Nonattainment Area that is affected by these 
requirements.
2. Part D Requirements
    Virginia's existing SIP satisfies the requirements of Part D of the 
CAA. Key elements of the Part D submittals are contained in Subpart 1 
(Nonattainment Areas in General) and Subpart 2 (Additional Provisions 
for Ozone Nonattainment Areas).
    a. Subpart 1. Section 172(c), Nonattainment Plan Provisions, has 
been met by a previous SIP revision, and its requirements are identical 
to those found in section 110(a)(2) and Part D. Section 172(c) 
requirements are as follows:
    1. Provisions for implementation of all reasonably available 
control measures;
    2. Demonstration of reasonable further progress;
    3. Comprehensive inventory of emissions;
    4. Identification and quantification of new source emissions;
    5. Permits for new and modified sources;
    6. Enforceable emissions limitations;
    7. Contingency measures;
    8. Section 173(a) contains requirements for issuing permits,

[[Page 53749]]

including offsets and the application of the lowest achievable emission 
rate (LAER); and
    9. Section 176 requires the state to develop transportation and 
general conformity procedures to be submitted as a SIP revision.
    b. Subpart 2. The specific requirements of section 182(a) through 
(d) have been met by the Commonwealth's SIP. These sections require 
that specific control measures and other requirements be adopted and 
implemented. These requirements were addressed above in section B. In 
addition to sections 182(a) thru 182(d) requirements, Virginia had to 
demonstrate that it would achieve a VOC emission reduction of 15 
percent. Finally, the SIP had to include an attainment demonstration 
supported by photochemical modeling.
3. Conformity Process
    Section 176(c) of the CAA requires states to establish criteria and 
procedures to ensure that Federally supported or funded projects 
conform to the air quality planning goals in the applicable SIP. The 
requirements to determine conformity applies to transportation plans, 
programs and projects developed, funded or approved under Title 23 
U.S.C. and the Federal Transit Act (``transportation conformity'') as 
well as to all other Federally supported or funded projects (``general 
conformity''). Section 176 further provides that state conformity 
revisions must be consistent with the Federal conformity regulations 
that the CAA required EPA to promulgate. Although Federal conformity 
rule changes are still pending, EPA believes that it is reasonable to 
interpret conformity requirements as not applying for purposes of 
evaluating a redesignation request under section 107(d) so that EPA may 
approve an ozone redesignation request notwithstanding the lack of a 
fully approved conformity SIP. The rationale for this is based on a 
combination of two factors. First, Federal conformity rules require 
performance of conformity analysis even in the absence of Federally 
approved states rules. Second, conformity provisions of the CAA 
continue to apply after redesignation because areas are subject to a 
maintenance plan which requires compliance with mobile budgets. 
Therefore, because areas are subject to the conformity requirements 
regardless of whether they are redesignated to attainment and must 
implement conformity under Federal rules if state rules are not 
approved, EPA believes it is reasonable to view these requirements as 
not applying for purposes of evaluating a redesignation request.
    Virginia submitted procedures to determine if systems-level highway 
plans and other Federally-financed projects are in conformity with air 
quality plans (``transportation conformity'') to EPA on January 20, 
1997 and were deemed complete by operation. The EPA has not yet taken 
action on this submittal. In the meantime, EPA is in the process of 
incorporating these changes to the state regulation. Pending EPA 
approval of the state regulation, Virginia will continue to make 
transportation conformity determinations under the provision of 40 CFR 
part 93, subpart A.
    The Fredericksburg Area Metropolitan Planning Organization (FAMPO) 
along with the Virginia Department of Motor Vehicles (DMV) provided 
2002 mobile source input parameters for the development of all future 
year inventories. As part of the SIP process, the recently submitted 
maintenance plan will establish an emission budget to be used for 
transportation conformity purposes. This mobile source emissions budget 
represents the level of mobile emissions that can be emitted in the 
area while supporting the air quality plan.

E. Maintenance Plan for the Fredericksburg Nonattainment Area

1. Maintenance Plan Requirements
    A maintenance plan is a SIP revision that provides maintenance of 
the relevant NAAQS in the area for at least 10 years after 
redesignation. A maintenance plan consists of the following 
requirements as outlined in section 175A of the CAA: (a) An attainment 
inventory; (b) a maintenance demonstration; (c) a monitoring network; 
(d) verification of continued attainment; and, (e) a contingency plan.
    a. Attainment Inventory. An attainment inventory includes the 
emissions during the time period associated with the monitoring data 
showing attainment. VADEQ determined that the appropriate attainment 
inventory year is 2004. That year establishes a reasonable year within 
the three-year block of 2002-2004 as a baseline and accounts for 
reductions attributed to implementation of the CAA requirements to 
date. This inventory is based on actual emission for a ``typical summer 
day'' and consist of a list of sources and their associated emissions.
    b. Maintenance Demonstration. VADEQ's calculations of future 
emissions of VOC and NOX from stationary and mobile sources 
demonstrate that future emissions will not exceed the level of 
Virginia's attainment inventory for a 10-year period following 
redesignation (see Tables 1 and 2). Future emissions levels must 
continue to remain at or below attainment levels for a period of 10 
years after EPA redesignates the area from nonattainment to attainment. 
The VADEQ's planning horizon for the maintenance plan is 2015.

                                   Table 1.--Total VOC Emissions for 2004-2015
----------------------------------------------------------------------------------------------------------------
                                                                                  2004 NOX          2015 NOX
                              Source category                                 emissions  (tpd)  emissions  (tpd)
----------------------------------------------------------------------------------------------------------------
Mobile\1\..................................................................             11.298            5.734
Nonroad....................................................................              3.304            2.231
Area \2\...................................................................             14.070           15.303
Point......................................................................              0.602            0.7824
                                                                            --------------------
    Total..................................................................             29.274           24.0504
----------------------------------------------------------------------------------------------------------------
\1\ Includes transportation conformity provisions.
\2\ Includes vehicle refueling emissions and the benefits of selected local controls (Stage I, CTG RACT, and
  open burning).
\3\ Includes selected local controls (open burning).


[[Page 53750]]


                                   Table 2.--Total NOX Emissions for 2004-2015
----------------------------------------------------------------------------------------------------------------
                                                                                  2004 NOX          2015 NOX
                              Source category                                 emissions  (tpd)  emissions  (tpd)
----------------------------------------------------------------------------------------------------------------
Mobile\1\..................................................................             19.742            7.326
Nonroad....................................................................              3.601            2.195
Area \3\...................................................................              3.465            4.742
Point......................................................................              0.179            0.0258
                                                                            --------------------
    Total..................................................................             26.987           14.2888
----------------------------------------------------------------------------------------------------------------
\1\ Includes transportation conformity provisions.
\2\ Includes vehicle refueling emissions and the benefits of selected local controls (Stage I, CTG RACT, and
  open burning).
\3\ Includes selected local controls (open burning).

    c. Monitoring Network. VADEQ will continue to operate its current 
air quality monitor in accordance with 40 CFR 58. Should measured 
mobile source parameters change significantly over time, the 
Commonwealth will perform a saturation monitoring study to determine 
the need for, and location of, additional permanent monitors.
    d. Verification of Continued Attainment. The Commonwealth of 
Virginia has the legal authority to implement and enforce specified 
measures necessary to attain and maintain the NAAQS. Key regulatory 
requirements that VADEQ will keep in place to maintain attainment 
include expanding CTG RACT, Stage I controls, and open burning 
restrictions to the City of Fredericksburg and Spotsylvania County.
    Virginia will track the progress of the maintenance demonstration 
by periodically updating the emissions inventory. This tracking will 
consist of annual and periodic evaluations. The annual evaluation will 
consist of checks on key emissions trend indicators such as the annual 
emissions update of stationary sources, the Highway Performance 
Monitoring System (HPMS) vehicle miles traveled data reported to the 
Federal Highway Administration, and other growth indicators. These 
indicators will be compared to the growth assumptions used in the plan 
to determine if the predicted versus the observed growth remains 
relatively constant. The State will also develop and submit to EPA 
comprehensive tracking inventories every three years during the 
maintenance plan period, beginning in 2005. For purpose of performing 
this tracking function for point sources, the Commonwealth will retain 
the annual emission statement requirements for the maintenance area (9 
VAC 5-20-160). Virginia will report the results of this tracking 
program to EPA every three years.
    e. Contingency Measures. According to the CAA, states that wish to 
redesignate nonattainment areas to attainment must include in their 
submittal to EPA contingency measures which will automatically take 
effect should violations of the NAAQS occur in the former nonattainment 
area. Contingency plan measures to be considered for implementation of 
Fredericksburg Nonattainment Area for VOC and NOx emissions 
above the regional emissions budget or two recorded ozone exceedances 
include the preparation of a complete VOC and NOx emission 
inventory (for exceeding the regional emissions budget scenario only) 
and the implementation of one or more regulations concerning area 
source VOC controls. These control measures consist of 9 VAC 5 Chapter 
40, Article 42 Emission Standards for Portable Fuel Container Spillage; 
9 VAC 5 Chapter 40, Article 48 Emission Standards for Mobile Equipment 
Repair and Refinishing Operations; 9 VAC 5 Chapter 40, Article 49 
Emission Standards for Architectural and Industrial Maintenance 
Coatings; and 9 VAC 5 Chapter 40, Article 50 Emission Standards for 
Consumer Products.
    In the event that a ozone violation occurs at the Stafford County 
monitor, the remaining area source VOC controls will be implemented. In 
the event that a violation of the ozone standard occurs following the 
implementation of VOC controls, and in any subsequent ozone season, 
NOx and VOC RACT will be implemented for sources emitting 
above 100 tpy that are located in Spotsylvania and Fredericksburg.
    Regardless of the number of exceedances or violations noted, the 
regulations controlling VOC emissions from area sources (9 VAC 5 
Chapter 40, Article 42; 9 VAC 5 Chapter 40, Article 48; 9 VAC 5 Chapter 
40, Article 49; and 9 VAC 5 Chapter 40, Article 50) will be expanded to 
Fredericksburg and Spotsylvania County such that these regulations will 
take effect in 2008, or as expeditiously as possible thereafter in 
order to provide additional air quality benefits.
2. Requirement for Continued Maintenance
    Section 175A(b) of the CAA will also require The Commonwealth of 
Virginia to submit a revision to the SIP eight years after the original 
redesignation request is approved to provide for maintenance of the 
NAAQS in the Fredericksburg Nonattainment Area for an additional 10 
years following the first 10-year period.

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

[[Page 53751]]

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 extend 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, 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

    The EPA is proposing to approve the Commonwealth of Virginia's May 
2, 2005 request for the Fredericksburg ozone nonattainment area to 
attainment of the eight-hour NAAQS for ozone because the requirements 
for approval have been satisfied. EPA is also proposing to approve the 
associated maintenance plan for this area as required under 175A of the 
CAA, as a revision to the Virginia SIP, which was submitted on May 4, 
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 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, 1966), 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 rule proposing to approve the redesignation of the 
Fredericksburg Ozone Nonattainment Area to attainment and to approve 
the associated maintenance plan, 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

40 CFR Part 52

    Environmental protection, Air pollution control, Nitrogen Oxides, 
Ozone, Reporting and recordkeeping requirements, Volatile organic 
compounds.

40 CFR Part 81

    Air pollution control, National Parks, Wilderness Areas.

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


[[Page 53752]]


    Dated: September 1, 2005.
Richard J. Kampf,
Acting Regional Administrator, Region III.
[FR Doc. 05-17928 Filed 9-9-05; 8:45 am]
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