[Federal Register Volume 72, Number 4 (Monday, January 8, 2007)]
[Rules and Regulations]
[Pages 653-656]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-22552]



40 CFR Part 52

[EPA-R03-OAR-2006-0648; FRL-8266-1]

Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Identification of the Northern Virginia PM2.5 Nonattainment 

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.


SUMMARY: EPA is taking direct final action to approve revisions to the 
Virginia State Implementation Plan (SIP). The revision consists of the 
addition of counties in Northern Virginia which were designated as 
nonattainment for the fine particulate (PM2.5) national ambient air 
quality standard (NAAQS). EPA is approving this revision in accordance 
with the requirements of the Clean Air Act.

DATES: This rule is effective on March 9, 2007 without further notice, 
unless EPA receives adverse written comment by February 7, 2007. If EPA 
receives such comments, it will publish a timely withdrawal of the 
direct final rule in the Federal Register and inform the public that 
the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2006-0648 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: [email protected].
    C. Mail: EPA-R03-OAR-2006-0648, Linda Miller, Acting Chief, Air 
Quality Planning and Analysis Branch,

[[Page 654]]

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-
2006-0648. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at 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 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: Linda Miller, (215) 814-2068, or by e-
mail at [email protected].


I. Background

    On May 8, 2006, the Commonwealth of Virginia submitted a formal 
revision to its State Implementation Plan (SIP). The SIP revision 
consists of the addition of counties in the Northern Virginia PM2.5 
nonattainment area to the air quality regulations in the Virginia Code 
(9 VAC 5-20-204). This section of the Virginia regulations identifies 
areas included in nonattainment areas for the National Ambient Air 
Quality Standards (NAAQS).
    On July 18, 1997, EPA revised the NAAQS for particulate matter to 
add a new standard for fine particulates (PM2.5), airborne 
particles with a nominal aerodynamic diameter of 2.5 micrometers or 
less. The health-based standards for air quality are the 
PM2.5 annual NAAQS, 15 micrograms per cubic meter, based on 
a 3-year average of annual mean PM2.5 concentrations; and 
the 24-hour NAAQS. 65 micrograms per cubic meter based on a 3-year 
average of the 98th percentile of 24-hour concentrations. Nonattainment 
areas for the fine particle standard (PM2.5) were 
promulgated by EPA on January 5, 2005 as required by section 197(d) of 
the Clean Air Act (CAA). Additional information on the designation 
process and requirements for nonattainment areas is found in the 
Federal Register document for the designations (70 FR 944 and 71 FR 
19844). The designation of these counties and local jurisdictions in a 
PM2.5 nonattainment area is not the subject of this 

II. Summary of SIP Revision

    The Commonwealth of Virginia is amending 9 VAC 5-20-204.A.3 to 
include the previously designated counties and local jurisdictions into 
the Northern Virginia portion of the Washington, DC PM2.5 
nonattainment area. The counties and local areas included in the 
nonattainment area are Arlington County, Fairfax County, Loudon County, 
Prince William, Alexandria City, Fairfax City, Falls Church City, 
Manassas City, and Manassas Park City. This SIP revision approves the 
addition of these counties and local jurisdictions to the planning 
areas listed in the Virginia Code (9 VAC 5-20-204.A.3).

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 
    Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that 
``[t]o the extent consistent with requirements

[[Page 655]]

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 
    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. Final Action

    EPA is approving the revision (VA D05) which identifies areas 
designated as part of the Northern Virginia portion of the Washington, 
DC PM2.5 nonattainment area. EPA is publishing this rule 
without prior proposal because the Agency views this as a 
noncontroversial amendment and anticipates no adverse comment. The 
designation process included opportunity for public comment. In 
addition, there were no public comments in the State public 
participation process. However, in the ``Proposed Rules'' section of 
today's Federal Register, EPA is publishing a separate document that 
will serve as the proposal to approve the SIP revision if adverse 
comments are filed. This rule will be effective on March 9, 2007 
without further notice unless EPA receives adverse comment by February 
7, 2007. If EPA receives adverse comment, EPA will publish a timely 
withdrawal in the Federal Register informing the public that the rule 
will not take effect. EPA will address all public comments in a 
subsequent final rule based on the proposed rule. EPA will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
State law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not 
have tribal implications because it will not have a substantial direct 
effect on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes, 
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). 
This action also does not have Federalism implications because it does 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). 
This action merely approves a state rule implementing a Federal 
requirement, and does not alter the relationship or the distribution of 
power and responsibilities established in the Clean Air Act. This rule 
also is not subject to Executive Order 13045 ``Protection of Children 
from Environmental Health Risks and Safety Risks'' (62 FR 19885, April 
23, 1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by March 9, 2007.
    Filing a petition for reconsideration by the Administrator of this 
final rule to update the Virginia regulations to include counties and 
local jurisdictions in the Northern Virginia PM2.5 nonattainment area 
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 may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Particulate 

[[Page 656]]

Reporting and recordkeeping requirements.

    Dated: December 22, 2006.
Donald S. Welsh,
Regional Administrator, Region III.

40 CFR part 52 is amended as follows:


1. The authority citation for 40 CFR part 52 continues to read as 

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

Subpart VV--Virginia

2. In Sec.  52.2420, the table in paragraph (c) is amended by revising 
the entry for Chapter 20, Part II, Section 5-20-204 to read as follows:

Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

                                 EPA-Approved Virginia Regulations and Statutes
  State  citation  (9         Title/subject        effective       EPA approval date       Explanation  [former
        VAC 5)                                        date                                    SIP citation]
                                                 * * * * * * *
                                         Chapter 20 General Provisions
                                                 * * * * * * *
                                          Part II Air Quality Programs
                                                  * * * * * * *
5-20-204..............     Nonattainment Areas       5/4/05       1/8/07 [Insert page     Paragraph 5-20-204A.3
                                                                    number where the             is added.
                                                                    document begins]
                                                  * * * * * * *

* * * * *
 [FR Doc. E6-22552 Filed 1-5-07; 8:45 am]