[Federal Register Volume 73, Number 38 (Tuesday, February 26, 2008)]
[Proposed Rules]
[Pages 10201-10203]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-3358]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2007-1068; FRL-8531-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Section 110(a)(1) 8-Hour Ozone Maintenance Plan for the White 
Top Mountain, Smyth County, VA 1-Hour Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) 
revision submitted by the Commonwealth of Virginia. This revision 
pertains to a 10-year maintenance plan for the White Top Mountain 1-
hour ozone nonattainment area located in Smyth County, Virginia. This 
action is being taken under the Clean Air Act (CAA).

DATES: Written comments must be received on or before March 27, 2008.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2007-1068 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-2007-1068, 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-
2007-1068. 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 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: Irene Shandruk, (215) 814-2166, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION: On August 6, 2007, the Virginia Department 
of Environmental Quality (VADEQ) submitted a revision to its (SIP) for

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approval of the section 110(a)(1) 8-hour ozone maintenance plan for 
White Top Mountain, Smyth County, Virginia.

I. Background

    Section 110(a)(1) of the Clean Air Act (CAA or Act) requires that 
areas that were either nonattainment or attainment/unclassifiable with 
an approved 175A maintenance plan for the 1-hour ozone National Ambient 
Air Quality Standard (NAAQS), and attainment for the 8-hour ozone NAAQS 
submit a plan to demonstrate the continued maintenance of the 8-hour 
ozone NAAQS. These plans were due to EPA on June 15, 2007, three years 
after the effective date of the initial 8-hour ozone designations.
    On May 20, 2005, EPA issued the Maintenance Plan Guidance Document 
for Certain 8-Hour Ozone Areas Under section 110(a)(1) of the Clean Air 
Act. The purpose of the guidance is to assist the states in the 
development of a SIP which addresses the maintenance requirements found 
in section 110(a)(1) of the CAA. There are five components of the 
section 110(a)(1) maintenance plan which are: (1) An attainment 
inventory, which is based on actual typical summer day emissions of 
volatile organic compounds (VOCs) and oxides of nitrogen 
(NOX) for a ten-year period from a base year as chosen by 
the state; (2) a maintenance demonstration which shows how the area 
will remain in compliance with the 8-hour ozone standard for 10 years 
after the effective date of designations (June 15, 2004); (3) a 
commitment to continue to operate air quality monitors; (4) a 
contingency plan that will ensure that a violation of the 8-hour ozone 
NAAQS is promptly addressed; and (5) an explanation of how the State 
will track the progress of the maintenance plan.

II. Summary of SIP Revision

    The Virginia Department of Environmental Quality (VADEQ) 8-hour 
ozone maintenance plan addresses the components of the section 
110(a)(1) 8-hour ozone maintenance plan as outlined in EPA's May 20, 
2005 guidance. Virginia has requested approval of a revision consisting 
of a 10-year maintenance plan under section 110(a)(1) for the White Top 
Mountain 1-hour ozone nonattainment area located in Smyth County, 
Virginia.
    VADEQ addressed the section 110(a)(1) guidance components as 
follows:
    Emissions Inventory: VADEQ provided an explanation describing that 
White Top Mountain has no anthropogenic emissions, and since the 
guidance document states that projecting emissions and demonstrating 
maintenance for 10 years is not required for areas where there are 
essentially no anthropogenic emissions, emissions projections are not 
necessary, and thereby, not included in this maintenance plan.
    Maintenance Demonstration and Tracking Progress: The demonstration 
should show how the area will remain in compliance with the 8-hour 
ozone standard for 10 years following the base year following the 
effective date of designation (June 15, 2004). This is usually 
accomplished by a demonstration that the area will have emissions that 
are equal to or below the emissions inventories of VOC and 
NOX for this 10-year period. Since White Top Mountain has no 
anthropogenic emissions, and since the guidance indicates that a 
maintenance demonstration is not necessary for areas with essentially 
no anthropogenic emissions, a maintenance demonstration has not been 
included in this maintenance plan.
    Ambient Air Quality Monitoring: The state should continue to 
operate air quality monitors in accordance with 40 CFR Part 58 to 
verify maintenance of the 8-hour ozone standard. Virginia, however, has 
never operated monitors on White Top Mountain. All of the monitors at 
this site were part of studies either managed by the Tennessee Valley 
Authority or EPA's Office of Research and Development, but these 
monitoring studies have ceased since 1999. Virginia does not have any 
monitors in place to operate nor does the Commonwealth plan on 
establishing a monitoring site. This is so for reasons which include 
the following: (1) There are no anthropogenic emissions at this site, 
(2) the very remote location of this nonattainment area, and (3) 
establishing a monitoring site would be cost-prohibitive.
    Contingency Measures: The guidance indicates that most areas must 
develop a contingency plan that will ensure any violation of the 8-hour 
ozone NAAQS is promptly corrected. The guidance also states that for 
areas that have essentially no anthropogenic emissions, having a 
maintenance plan with contingency measures would be an ``absurd'' 
outcome. Therefore, contingency measures are not necessary, and 
thereby, not included in this maintenance plan.
    Verification of Continued Attainment: Since emissions projections 
depend on assumptions of point, area, and mobile sources emissions, the 
guidance indicates that the state should indicate how it will track the 
progress of the maintenance plan. However, since the guidance 
specifically notes that emissions inventories and contingency measures 
are not necessary for areas where there are essentially no 
anthropogenic emissions, verification of these requirements is also not 
necessary, and therefore, not included in the maintenance plan.
    The VADEQ is requesting approval of their SIP revision which 
consists of a 10-year maintenance plan under section 110(a)(1) for the 
White Top Mountain 1-hour ozone nonattainment area located in Smyth 
County, Virginia.

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

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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. Proposed Action

    EPA's review of this material indicates that Virginia has addressed 
the components of a maintenance plan pursuant to EPA's May 20, 2005 
guidance. EPA is proposing to approve the Virginia SIP revision for 
White Top Mountain, Smyth County, Virginia, which was submitted on 
August 6, 2007. 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, 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 CAA. This proposed rule 
also is not subject to Executive Order 13045 (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. 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 action proposing approval of Virginia's SIP revision request 
consisting of a 10-year maintenance plan under Sec.  110(a)(1) for the 
White Top Mountain 1-hour ozone nonattainment area located in Smyth 
County, Virginia 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, Incorporation by 
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

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

    Dated: February 12, 2008.
Donald S. Welsh,
Regional Administrator, Region III.
 [FR Doc. E8-3358 Filed 2-25-08; 8:45 am]
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