[Federal Register Volume 73, Number 9 (Monday, January 14, 2008)]
[Rules and Regulations]
[Pages 2159-2162]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-265]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2007-1149; FRL-8515-4]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Fredericksburg and Shenandoah National Park 8-Hour Ozone 
Areas Movement From the Nonattainment Area List to the Maintenance Area 
List

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve revisions to the 
Virginia State Implementation Plan (SIP) that was submitted on August 
14, 2007 by the Commonwealth of Virginia. The revisions move the 
Fredericksburg and the Shenandoah National Park 8-Hour Ozone Areas from 
the Nonattainment Area list to the Maintenance Area list. EPA is 
approving these revisions to move the Fredericksburg 8-Hour Ozone 
Nonattainment Area (Spotsylvania County, Stafford County, and 
Fredericksburg City) and the Shenandoah National Park 8-Hour Ozone 
Nonattainment Area (portions of the park located in Page and Madison 
Counties) from the list of nonattainment areas to the list of 
maintenance areas in accordance with the requirements of the Clean Air 
Act (CAA).

DATES: This rule is effective on March 14, 2008 without further notice, 
unless EPA receives adverse written comment by February 13, 2008. 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-2007-1149 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-2007-1149, Cristina Fernandez, 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-
2007-1149. 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.

[[Page 2160]]

    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: Melissa Linden, (215) 814-2096, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On September 22, 2004, under the 8-Hour Ozone National Ambient Air 
Quality Standard (NAAQS) the Fredericksburg area and the Shenandoah 
National Park area were designated as nonattainment areas. The 
Shenandoah National Park area formally submitted a redesignation 
request on September 21, 2005 along with a maintenance plan on 
September 23, 2005. On January 3, 2006, (71 FR 24) the U.S. 
Environmental Protection Agency (EPA) published the final rulemaking 
actions approving the redesignation of the Shenandoah National Park 
from nonattainment of the 8-Hour Ozone Standard to attainment. The 
Fredericksburg area formally submitted a redesignation request on May 
2, 2005 along with a maintenance plan on May 4, 2005. On December 23, 
2005, (70 FR 76165) the U.S. Environmental Protection Agency (EPA) 
published the final rulemaking actions approving the redesignation of 
the Fredericksburg area from nonattainment of the 8-Hour Ozone Standard 
to attainment. Both redesignations were done in accordance with the 
Clean Air Act section 107(d)(3)(E).

II. Summary of SIP Revision

    On August 14, 2007, the Commonwealth of Virginia submitted a formal 
revision to its State Implementation Plan (SIP). The SIP revision 
consists of a regulatory change that moves the Fredericksburg 8-Hour 
Ozone Nonattainment Area and the Shenandoah National Park 8-Hour Ozone 
Nonattainment Area from the list of nonattainment areas to the list of 
maintenance areas. The purpose of Virginia's State Implementation Plan 
revision consists of a regulatory change to move the Fredericksburg 8-
Hour Ozone Nonattainment Area (Spotsylvania County, Stafford County, 
and Fredericksburg City) and the Shenandoah National Park 8-Hour Ozone 
Nonattainment Area (portions of the park located in Page and Madison 
Counties) from the list of nonattainment areas found in regulation 9 
VAC 5-20-204 to the list of maintenance areas found in regulation 9 VAC 
5-20-203.

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 CAA, 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 CAA is likewise unaffected by 
this, or any, state audit privilege or immunity law.

IV. Final Action

    EPA is approving the Commonwealth's request to move the 
Fredericksburg area and the Shenandoah National Park area from 8-Hour 
Ozone Nonattainment list to the 8-Hour Ozone Maintenance list.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comment. However, in the ``Proposed Rules'' section of today's 
Federal

[[Page 2161]]

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 14, 2008 without further notice 
unless EPA receives adverse comment by February 13, 2008. 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. Please note that if EPA receives adverse comment on an 
amendment, paragraph, or section of this rule and if that provision may 
be severed from the remainder of the rule, EPA may adopt as final those 
provisions of the rule that are not the subject of an adverse comment.

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 CAA. 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 approves a state rule implementing a Federal 
standard.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. 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 CAA. 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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by March 14, 2008. 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 revision to move the Fredericksburg area and 
the Shenandoah National Park area from the 8-Hour Ozone Nonattainment 
list to the 8-Hour Ozone Maintenance list 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, Incorporation by 
reference, Nitrogen oxides, Ozone, Recordkeeping and reporting 
requirements, Volatile organic compounds.

    Dated: December 27, 2007.
William T. Wisniewski,
Acting Regional Administrator, Region III.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for 40 CFR 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 (c) is amended by revising 
the entries for Chapter 20, section 5-20-203 and 5-20-204 to read as 
follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

[[Page 2162]]



                                 Epa-Approved Virginia Regulations And Statutes
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                                                           State
    State citation  (9 VAC 5)         Title/subject      effective   EPA  approval date    Explanation  [former
                                                            date                              SIP citation]
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                                                  * * * * * * *
Chapter 20......................  General Provisions..
 
                                                  * * * * * * *
Part II.........................  Air Quality Programs
 
                                                  * * * * * * *
5-20-203........................  Air Quality              09/01/06  01/14/08 [Insert    Fredericksburg and
                                   Maintenance Areas.                 page number where   Shenandoah 8-Hour
                                                                      the document        Ozone Areas are added.
                                                                      begins].
5-20-204........................  Nonattainment Areas.     09/01/06  01/14/08 [Insert    Fredericksburg and
                                                                      page number where   Shenandoah 8-Hour
                                                                      the document        Ozone Areas are
                                                                      begins].            deleted.
 
                                                  * * * * * * *
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 [FR Doc. E8-265 Filed 1-11-08; 8:45 am]
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