[Federal Register Volume 73, Number 83 (Tuesday, April 29, 2008)]
[Rules and Regulations]
[Pages 23103-23105]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-9266]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2007-1068; FRL-8559-6]


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: Final rule.

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SUMMARY: EPA is approving 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: Effective Date: This final rule is effective on May 29, 2008.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2007-1068. All documents in the docket are listed in 
the http://www.regulations.gov Web site. Although listed in the 
electronic docket, some information is not publicly available, i.e., 
confidential business information (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 through http://www.regulations.gov or in hard copy for public inspection 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:

I. Background

    Section 110(a)(1) of the CAA requires that states submit to EPA 
plans to maintain the NAAQS promulgated by EPA. EPA interprets this 
provision to require that areas that were maintenance areas for the 1-
hour ozone NAAQS, but attainment for the 8-hour ozone NAAQS, submit a 
plan to demonstrate the continued maintenance of the 8-hour ozone 
NAAQS.
    On May 20, 2005, EPA issued guidance that applies to areas that are 
designated unclassifiable/attainment for the 8-hour ozone standard. The 
purpose of this guidance is to address the maintenance requirements in 
section 110(a)(1) of the CAA, and to assist the States in the 
development of a SIP. The components from EPA's guidance include: (1) 
An attainment emissions inventory, which is based on actual ``typical 
summer day'' emissions of volatile organic compounds (VOCs) and 
nitrogen oxides (NOX) for the 10-year maintenance period, 
from a base-year chosen by the State; (2) a maintenance demonstration, 
which demonstrates how the area will remain in compliance with the 8-
hour ozone standard for a period of 10 years following the effective 
date of designation unclassifiable/attainment (June 15,

[[Page 23104]]

2004); (3) an ambient air monitoring network, which will be in 
continuous operation in accordance with 40 CFR part 58 to verify 
maintenance of the 8-hour ozone standard; (4) a contingency plan, that 
will ensure that in the event of a violation of the 8-hour ozone NAAQS, 
measures will be implemented as promptly as possible; (5) a 
verification of continued attainment, indicating how the State intends 
on tracking the progress of the maintenance plan.
    On February 26, 2008 (73 FR 10201), EPA published a notice of 
proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR 
proposed approval of a 10-year maintenance plan for the White Top 
Mountain 1-hour ozone nonattainment area located in Smyth County, 
Virginia. The formal SIP revision was submitted by the Commonwealth of 
Virginia on August 6, 2007.
    Other specific requirements of the 10-year maintenance plan under 
section 110(a)(1) for the White Top Mountain 1-hour ozone nonattainment 
area located in Smyth County, Virginia and the rationale for EPA's 
proposed action are explained in the NPR and will not be restated here. 
No public comments were received on the NPR.

II. Summary of SIP Revision

    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. The Virginia Department of Environmental Quality (VADEQ) 8-
hour ozone maintenance plan addresses the five components of EPA's May 
20, 2005 Guidance, which pertains to the maintenance requirements in 
section 110(a)(1) of the CAA.

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 Clean Air Act is likewise 
unaffected by this, or any, state audit privilege or immunity law.

IV. Final Action

    EPA's review of this revision indicates that the Commonwealth of 
Virginia has addressed the components of a maintenance plan pursuant to 
EPA's May 20, 2005 guidance, and meets the requirements of section 
110(a)(1) of the CAA. EPA is approving the Virginia SIP revision for 
White Top Mountain, Smyth County, Virginia, which was submitted on 
August 6, 2007.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);

[[Page 23105]]

     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

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 action 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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action 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 June 30, 2008. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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 approving Virginia's SIP revision 
request 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 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 dioxide, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: April 15, 2008.
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 part 52 continues to read as follows:

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

Subpart XX--Virginia

0
2. In Sec.  52.2420, the table in paragraph (e) is amended by adding an 
entry for the 8-hour Ozone Maintenance plan for the White Top Mountain, 
Smyth County, VA 1-hour Ozone Nonattainment Area at the end of the 
table to read as follows:


Sec.  52.2520  Identification of plan.

* * * * *
    (e) * * *

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                                                State
Name of non-regulatory SIP     Applicable     submittal        EPA approval date        Additional explanation
         revision           geographic area      date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
 Ozone Maintenance Plan...   White Top            8/6/07  8/29/08.
                             Mountain,
                             Smyth County,
                             VA 1-hour
                             Ozone
                             Nonattainment
                             Area.
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 [FR Doc. E8-9266 Filed 4-28-08; 8:45 am]
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