[Federal Register Volume 71, Number 4 (Friday, January 6, 2006)]
[Proposed Rules]
[Pages 890-892]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-37]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2005-VA-0015; FRL-8019-8]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; NSR in the Ozone Transport Region

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: This action is being taken under the Clean Air Act (CAA or the 
Act). EPA is proposing to approve a State Implementation Plan (SIP) 
revision submitted by the Commonwealth of Virginia. This revision 
pertains to changes in the State's regulations that require 
implementation of nonattainment New Source Review (NSR) in the Ozone 
Transport Region (OTR) locations in Virginia.

DATES: Written comments must be received on or before February 6, 2006.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2005-VA-0015 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: [email protected].
    C. Mail: EPA-R03-OAR-2005-VA-0015, David Campbell, Chief, Permits 
and Technical Assessment Branch, Mailcode 3AP11, U.S. Environmental 
Protection Agency, Region III, 1650 Arch Street, Philadelphia, 
Pennsylvania 19103.
    D. 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 Docket ID No. EPA-R03-OAR-
2005-VA-0015. 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.regulations.gov, 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 
www.regulations.gov or e-mail. The www.regulations.gov Web site is 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 www.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 
www.regulations.gov index. 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 http://www.regulations.gov 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: Sharon McCauley, (215) 814-3376, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION: On March 28, 2005, the Virginia Department 
of Environmental Quality submitted a SIP revision approval request 
entitled, ``NSR in the Ozone Transport Region (OTR).'' The applicable 
regulations requiring implementation of nonattainment NSR in the 
Virginia portion of the OTR were adopted by the Virginia State Air 
Pollution Control Board on September 29, 2004.

I. Background

    The Clean Air Act requires that 13 states including the District of 
Columbia submit revisions to their State Implementation Plans that will 
require major new and major modified sources of volatile organic 
compounds (VOC) or nitrogen oxides (NOX) to meet certain new 
source review (NSR) requirements if they are located (or are proposing 
to locate) in the Ozone Transport Region.
    Section 184 of the Act establishes the OTR, which consists of the 
states of Connecticut, Delaware, Maine, Maryland, Massachusetts, New 
Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, 
and the Consolidated Metropolitan Statistical Area that includes the 
District of Columbia and portions of Virginia. The areas designated as 
in the Virginia portion of the OTR are as follows: Arlington County, 
Fairfax County, Loudoun County, Prince William County, Stafford County, 
Alexandria

[[Page 891]]

City, Fairfax City, Falls Church City, Manassas City, and Manassas Park 
City.

II. Summary of SIP Revision

    The Commonwealth of Virginia amended its regulations to clarify 
that areas located in the Virginia portion of the OTR must meet the 
requirements of Virginia Code Article 9 VAC 5 Chapter 80 (Permits for 
Major Stationary Sources and Major Modifications Locating in 
Nonattainment Areas) as if they were classified as moderate 
nonattainment for ozone, except that the threshold for major stationary 
sources of VOCs would be 50 tons instead of 100 tons. The changes that 
are reflected in this requested SIP revision are those that identify 
and define the OTR locations in Virginia while providing direction to 
what State regulations sources will need to follow when they are either 
planning to locate in or are already located in the Virginia portion of 
the OTR. Changes were made to the State provisions at 9 VAC 5-80-2000, 
Applicability and 9 VAC 5-80-2010, Definitions.
    Sources in the Virginia portion of the OTR are also required to 
meet offset requirements in 9 VAC 5-80-2120 B 2 for areas classified as 
moderate nonattainment for ozone. These provisions require all 
increases of VOC and/or NOX emissions attributable to the 
new or modified source to be offset with emission reductions elsewhere 
in the Virginia portion of the OTR at a ratio of 1.15 to 1.00.
    The SIP revision will amend the SIP to add new regulatory language 
indicating that sources in the Virginia portion of the OTR are subject 
to the requirements of 9 VAC 5-80-2000, et seq. regardless of the 
nonattainment status of the area where the source is located. The SIP 
revision also provides that sources located or planning to locate in 
areas within the OTR that are classified as ``serious'' or ``severe'' 
nonattainment areas are required to meet the respective emission 
thresholds listed within the State's definition of a ``major stationary 
source'' at 9 VAC 5-80-2010 C Section a(1) and (2) and the more 
restrictive offset requirements located in 9 VAC 5-80-2120 B 3 and B 4, 
respectively.

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 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 NSR 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's review of this material indicates this action will have a 
beneficial effect on air quality by reducing emissions in the Ozone 
Transport Region. EPA is proposing to approve the Virginia SIP revision 
for NSR in the Ozone Transport Region, which was submitted on March 28, 
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

[[Page 892]]

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 requirement, 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, 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, to approve the Virginia Department of Environmental 
Quality State Implementation Plan revision request requiring 
implementation of NSR in the Virginia portion of the Ozone Transport 
Region, 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, Carbon monoxide, 
Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

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

    Dated: December 28, 2005.
Donald S. Welsh,
Regional Administrator, Region III.
 [FR Doc. E6-37 Filed 1-5-06; 8:45 am]
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