[Federal Register Volume 71, Number 1 (Tuesday, January 3, 2006)]
[Rules and Regulations]
[Pages 24-27]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-24364]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R03-OAR-2005-VA-0013; FRL-8012-3]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Redesignation of the Shenandoah National Park Ozone 
Nonattainment Area To Attainment and Approval of the Area's Maintenance 
Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a redesignation request and a State 
Implementation Plan (SIP) revision submitted by the Commonwealth of 
Virginia. The Virginia Department of Environmental Quality (VADEQ) is 
requesting that the Shenandoah National Park area (the SNP area) be 
redesignated as attainment for the 8-hour ozone national ambient air 
quality standard (NAAQS). In conjunction with its redesignation 
request, the Commonwealth submitted a SIP revision consisting of a 
maintenance plan for the SNP area that provides for continued 
attainment of the 8-hour ozone NAAQS for the next 10 years. EPA is also 
approving the adequacy determination for the motor vehicle emission 
budgets (MVEBs) that are identified in the 8-hour maintenance plan for 
the SNP area for purposes of transportation conformity, and is 
approving those MVEBs. EPA is approving the redesignation request and 
the maintenance plan revision to the Virginia SIP in accordance with 
the requirements of the CAA.

DATES: Effective Date: This final rule is effective on February 2, 
2006.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2005-VA-0013. All documents in the docket are listed 
in the www.regulations.gov Web site. 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 through www.regulations.gov 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: Amy Caprio, (215) 814-2156, or by e-
mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On November 4, 2005 (70 FR 67109), EPA published a notice of 
proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR 
proposed approval of Virginia's redesignation request and a SIP 
revision that establishes a maintenance plan for the SNP area that sets 
forth how the SNP area will maintain attainment of the 8-hour ozone 
NAAQS for the next 10 years. The formal SIP revision was submitted by 
the VADEQ on September 21, 2005 and September 23, 2005. Other specific 
requirements of Virginia's redesignation request SIP revision for the 
maintenance plan, and the rationale for EPA's proposed action are 
explained in the NPR and will not be restated here. No adverse public 
comments were received on the NPR.

II. 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

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privilege is claimed. Virginia's legislation also provides, subject to 
certain conditions, for a penalty waiver for violations of 
environmental laws when a regulated entity discovers such violations 
pursuant to a voluntary compliance evaluation and voluntarily discloses 
such violations to the Commonwealth and takes prompt and appropriate 
measures to remedy the violations. Virginia's Voluntary Environmental 
Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege 
that protects from disclosure documents and information about the 
content of those documents that are the product of a voluntary 
environmental assessment. The Privilege Law does not extend to 
documents or information (1) that are generated or developed before the 
commencement of a voluntary environmental assessment; (2) that are 
prepared independently of the assessment process; (3) that demonstrate 
a clear, imminent and substantial danger to the public health or 
environment; or (4) that are required by law.
    On January 12, 1998, the Commonwealth of Virginia Office of the 
Attorney General provided a legal opinion that states that the 
Privilege law,Va. Code Sec. 10.1-1198, precludes granting a privilege 
to documents and information ``required by law,'' including documents 
and information ``required by Federal law to maintain program 
delegation, authorization or approval,'' since Virginia must ``enforce 
Federally authorized environmental programs in a manner that is no less 
stringent than their Federal counterparts * * * .'' The opinion 
concludes that ``[r]egarding Sec.  10.1-1198, therefore, documents or 
other information needed for civil or criminal enforcement under one of 
these programs could not be privileged because such documents and 
information are essential to pursuing enforcement in a manner required 
by Federal law to maintain program delegation, authorization or 
approval.''
    Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that 
``[t]o the extent consistent with requirements imposed by Federal 
law,'' any person making a voluntary disclosure of information to a 
state agency regarding a violation of an environmental statute, 
regulation, permit, or administrative order is granted immunity from 
administrative or civil penalty. The Attorney General's January 12, 
1998 opinion states that the quoted language renders this statute 
inapplicable to enforcement of any Federally authorized programs, since 
``no immunity could be afforded from administrative, civil, or criminal 
penalties because granting such immunity would not be consistent with 
Federal law, which is one of the criteria for immunity.''
    Therefore, EPA has determined that Virginia's Privilege and 
Immunity statutes will not preclude the Commonwealth from enforcing its 
program consistent with the Federal requirements. In any event, because 
EPA has also determined that a state audit privilege and immunity law 
can affect only state enforcement and cannot have any impact on Federal 
enforcement authorities, EPA may at any time invoke its authority under 
the Clean Air Act, including, for example, sections 113, 167, 205, 211 
or 213, to enforce the requirements or prohibitions of the state plan, 
independently of any state enforcement effort. In addition, citizen 
enforcement under section 304 of the Clean Air Act is likewise 
unaffected by this, or any, state audit privilege or immunity law.

III. Final Action

    EPA is approving the Commonwealth of Virginia's September 21, 2005 
redesignation request and September 23, 2005 maintenance plan because 
the requirements for approval have been satisfied. EPA has evaluated 
Virginia's redesignation request, submitted on September 21, 2005, and 
determined that it meets the redesignation criteria set forth in 
section 107(d)(3)(E) of the CAA. EPA believes that the redesignation 
request and monitoring data demonstrate that the SNP area has attained 
the 8-hour ozone standard. The final approval of this redesignation 
request will change the designation of the SNP area from nonattainment 
to attainment for the 8-hour ozone standard. EPA is approving the 
associated maintenance plan for this area, submitted on September 23, 
2005, as a revision to the Virginia SIP. EPA is approving the 
maintenance plan for the SNP area because it meets the requirements of 
section 175A. EPA is also approving the MVEBs submitted by Virginia for 
this area in conjunction with its redesignation request. The SNP area 
is subject to the CAA's requirements for basic ozone nonattainment 
areas until and unless it is redesignated to attainment.

IV. Statutory and Executive Order Reviews

A. General Requirements

    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. Redesignation of an area to attainment under 
section 107(d)(3)(e) of the Clean Air Act does not impose any new 
requirements on small entities. Redesignation is an action that affects 
the status of a geographical area and does not impose any new 
regulatory requirements on sources. 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 (Public Law 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 affect the status of a geographical area, does not 
impose any new requirements on sources, or allow the state to avoid 
adopting or implementing other requirements, 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

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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. Redesignation is an action that affects the status of a 
geographical area and does not impose any new requirements on sources. 
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, 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.

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 March 6, 2006. 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 the redesignation request, maintenance plan 
and adequacy determination for MVEBs for the SNP area, may not be 
challenged later in proceedings to enforce its requirements. (See 
section 307(b)(2).)

List of Subjects

40 CFR Part 52

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

40 CFR Part 81

    Environmental protection, Air pollution control, National parks, 
Wilderness areas.

    Dated: December 13, 2005.
Donald S. Welsh,
Regional Administrator, Region III.

0
40 CFR parts 52 and 81 are 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 table in paragraph (e) is amended by adding an 
entry for the 8-Hour Ozone Maintenance Plan, Madison & Page Cos. 
(Shenandoah NP), VA Area at the end of the table to read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
   Name of non-regulatory SIP        Applicable        State submittal                            Additional
            revision               geographic area          date          EPA approval date      explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
8-Hour Ozone Maintenance Plan    Madison County      9/23/05...........  1/3/06 [Insert      ...................
 for the Madison & Page Cos.      (part) and Page                         page number where
 (Shenandoah NP), VA Area.        County (part).                          the document
                                                                          begins].
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PART 81--[AMENDED]

0
1. The authority citation for Part 81 continues to read as follows:

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

0
2. Section 81.347 is amended by revising the ozone table entry for the 
Madison & Page Cos. (Shenandoah NP), VA Area to read as follows:


Sec.  81.347  Virginia.

* * * * *

                                                            Virginia--Ozone (8-Hour Standard)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Designation                                           Classification
             Designated area             ---------------------------------------------------------------------------------------------------------------
                                             Date 1                       Type                       Date 1                       Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Madison & Page Cos. (Shenandoah NP), VA
 Area:
    Madison County (part)...............       1/3/06  Attainment                                 ...........  .........................................
    Page County (part)..................       1/3/06  Attainment                                 ...........  .........................................
 
                                                                      * * * * * * *
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1 This date is June 15, 2004, unless otherwise noted.


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[FR Doc. 05-24364 Filed 12-30-05; 8:45 am]
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