[Federal Register Volume 71, Number 112 (Monday, June 12, 2006)]
[Proposed Rules]
[Pages 33669-33672]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-9081]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2005-VA-0010; FRL-8182-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Amendments to Existing Regulation Provisions Concerning 
Maintenance, Nonattainment, and Prevention of Significant Deterioration 
Areas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve State Implementation Plan (SIP) 
revisions submitted by the Commonwealth of Virginia. These revisions 
consist of amendments to state regulation provisions concerning 
maintenance, nonattainment, and prevention of significant deterioration 
(PSD) areas for incorporation into the Virginia SIP. This action is 
being taken under the Clean Air Act (CAA or the Act).

DATES: Written comments must be received on or before July 12, 2006.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2005-VA-0010 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-0010, Makeba Morris, Chief, Air 
Quality Planning Branch, Mailcode 3AP21, 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-0010. 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 http://www.regulations.gov or e-mail. The http://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 http://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 
http://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

[[Page 33670]]

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: Ellen Wentworth, (215) 814-2034, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On August 15, 17, 19, September 28, and October 3, 2005, the 
Commonwealth of Virginia, Department of Environmental Quality, 
submitted revisions to its SIP. These revisions consisted of amendments 
to Virginia's regulations pertaining to nonattainment, maintenance, and 
prevention of significant deterioration (PSD) areas. More detailed 
information on these proposed revisions can be found in the technical 
support document (TSD) prepared for this rulemaking.
    Listed below is a summary of each of the revisions that is being 
proposed for incorporation into the Virginia SIP.

II. Summary of SIP Revisions

    A. On August 15, 2005, the Commonwealth of Virginia submitted a 
revision to its SIP. This revision eliminates the air quality 
maintenance area (AQMA) concept found in 9 VAC 5-20-203, which was 
promulgated by the EPA in the 1970's, and replaces it with the 
maintenance area concept consistent with the 1990 Clean Air Act 
Amendments (CAAA). This action will not result in the backsliding of 
any control measures that have been submitted by the Commonwealth and 
approved by EPA into the Commonwealth of Virginia SIP. The August 15, 
2005 revision also reflects the redesignation of the Hampton Roads Area 
to attainment of the 1-hour ozone national ambient air quality 
standards (NAAQS) (62 FR 34408, June 26, 1997), by adding the area to 
the list of ozone maintenance areas found in 9 VAC 5-20-203.1, and 
deleting the area from the list of 1-hour ozone nonattainment areas 
found in 9 VAC 5-20-204.1(c). Additionally, this revision removes the 
exclusion of the Hampton Roads Area from the list of PSD areas found in 
9 VAC 5-20-205.A.4(f).
    B. On August 17, 2005, the Commonwealth of Virginia submitted a 
revision to its SIP. This revision reflects the redesignation of the 
Richmond 1-hour ozone nonattainment area to attainment (62 FR 61237, 
November 17, 1997), of the 1-hour standard by amending 9 VAC 5-20-
204.1(b) to remove the Richmond Area from the list of areas regulated 
as nonattainment areas, and adding it to the list of maintenance areas 
found in 9 VAC 5-20-203.1. The revision also reflects the removal of 
the exemption of the Richmond Area from the list of PSD areas found in 
9 VAC 5-20-205.A(e).
    C. On August 19, 2005, the Commonwealth of Virginia submitted a 
revision to its SIP. This revision reflects the first repeal of the 1-
hour ozone NAAQS (63 FR 31087, June 5, 1998), by removing the White Top 
Mountain Area from the list of 1-hour ozone nonattainment areas found 
in 9 VAC 5-20-204.1(b). The revision further amends 9 VAC 5-20-205.A(4) 
by removing the exemption of the White Top Mountain Area from the list 
of areas subject to regulation as a PSD area.
    In the June 5, 1998 (63 FR 31087) final rulemaking, the 1-hour 
ozone standard was repealed for areas that had not measured a current 
violation of the 1-hour standard. All of Smyth County, Virginia, 
including the White Top Mountain Area, was one of the areas where the 
1-hour standard no longer applied. The August 19, 2005 SIP revision 
reflects this repeal of the 1-hour ozone NAAQS by removing the White 
Top Mountain Area from the list of 1-hour ozone nonattainment areas in 
9 VAC 5-20-204.1(b) and removing its exclusion from the list of PSD 
areas in 9 VAC 5-20-205.A(4). However, in a 1999 court decision, EPA's 
previous determinations on the applicability of the 1-hour ozone 
standard (63 FR 31014 June 5, 1998), were challenged, and as a result, 
on October 25, 1999 (64 FR 57424), EPA proposed that the 1-hour ozone 
standard would be reinstated in those areas where it had previously 
been revoked and the associated designations and classifications that 
previously applied in such areas with respect to the 1-hour NAAQS would 
also be reinstated. In a July 20, 2000 (65 FR 45182) final rule, EPA 
reinstated the White Top Mountain Area as a rural transport (marginal) 
ozone nonattainment area under the 1-hour ozone NAAQS. The effective 
date for the reinstatement of the 1-hour ozone NAAQS in the White Top 
Mountain Area was January 16, 2001 (65 FR 45182).
    On April 30, 2004 (69 FR 23951), EPA published the first phase of 
its final rule to implement the 8-hour ozone NAAQS (Phase I Rule). Also 
on April 30, 2004 (69 FR 23858), EPA published 8-hour ozone 
designations for all areas of the country. For most areas, including 
the White Top Mountain Area, the designations under the 8-hour ozone 
NAAQS became effective on June 15, 2004. The Phase I Rule provided that 
the 1-hour ozone NAAQS would no longer apply for an area one year 
following the effective date of the area's designation for the 8-hour 
ozone NAAQS. On August 3, 2005 (70 FR 44470), EPA issued a final rule 
that codified the revocation of the 1-hour standard for those areas 
with effective 8-hour ozone designations. On June 15, 2005, all of 
Smyth County, Virginia was no longer subject to the 1-hour ozone NAAQS 
and was designated attainment of the 8-hour ozone NAAQS. Now that the 
1-hour standard has been revoked and the White Top Mountain Area is 
designated attainment for all NAAQS, the only permitting program 
Virginia must have under Title 1 of the CAA is the PSD program. 
Therefore, EPA can now approve these changes to 9 VAC 5-20-204.1(b) and 
9 VAC 5-20-205.A(4) for the White Top Mountain Area that were submitted 
on August 19, 2005 into the Virginia SIP.
    D. On September 28, 2005, the Commonwealth of Virginia submitted a 
revision to its SIP. The revision consists of updates to existing 
regulations by incorporating the new 8-hour ozone nonattainment areas 
into the list of Virginia's nonattainment areas found in 9 VAC 5-20-
204.A and revising the list of PSD areas found in 9 VAC 5-20-205.A. The 
revision also adds a provision, 9 VAC 5-20-204.B., which removes the 
severe area program in the Northern Virginia Ozone Nonattainment Area 
as the area was constituted under the 1-hour standard. Because the 
severe area program imposed more stringent requirements than required 
under section 184 of the CAA in that area, Virginia did not need to 
have a separate new source review (NSR) program meeting the section 184 
requirements. On January 6, 2006, (FR 71 890), EPA proposed to approve 
a SIP revision to implement the NSR program required under section 184 
of the CAA in Virginia's portion of the Ozone Transport Region (OTR). 
EPA is proposing approval of the September 28, 2005 SIP revision 
contingent upon EPA issuing a final action approving the January 6, 
2006 (71 FR 890) rulemaking. It should be noted that since the 
September 28, 2005 SIP revision submittal, EPA has redesignated the 
Fredericksburg (December 23, 2005, 70 FR 76165), and Shenandoah 
National Park (January 3, 2006, 71 FR 24) areas

[[Page 33671]]

to attainment of the 8-hour ozone NAAQS.
    The revision to 9 VAC 5-20-205.A amends the list of PSD areas by 
deleting the list of specific localities and incorporating language 
indicating that the areas subject to PSD are those areas that are not 
designated as nonattainment in 9 VAC 5-20-204.A. The September 28, 2005 
SIP submittal also removes mercury, beryllium, asbestos, and vinyl 
chloride from the list of pollutants found in 9 VAC 5-20-205.B for 
which PSD areas are defined. The 1990 Amendments to the CAA at section 
112(b)(6) exempted hazardous air pollutants (HAPs) listed under section 
112(b)(1) from the PSD requirements in part C of the CAA. These HAPS 
include: arsenic, asbestos, benzene, beryllium, mercury, radionuclides, 
and vinyl chloride, all of which were previously regulated under the 
PSD rules. Virginia has consequently removed these pollutants from 9 
VAC 5-205.B to conform to the 1990 CAA Amendments.
    E. On October 3, 2005, the Commonwealth of Virginia submitted a 
revision to its SIP. This revision updates existing regulations to 9 
VAC 5-20-204.A.2 by changing the nonattainment classification of the 
Richmond 8-hour ozone nonattainment area from ``moderate'' to 
``marginal.'' This change reflects EPA's reclassification of the 
Richmond Area which was published on September 22, 2004 (69 FR 56697).

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 
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 Commonwealth of Virginia's SIP 
revisions amending existing regulations pertaining to nonattainment, 
maintenance and PSD areas which were submitted on August 15, 17, 19, 
September 28, and October 3, 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,

[[Page 33672]]

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, pertaining to amendments to existing regulation 
provisions concerning Virginia's nonattainment, maintenance, and PSD 
areas, 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 recordkeeping requirements, Volatile organic 
compounds.

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

    Dated: June 1, 2006.
Donald S. Welsh,
Regional Administrator, Region III.
 [FR Doc. E6-9081 Filed 6-9-06; 8:45 am]
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