[Federal Register Volume 73, Number 222 (Monday, November 17, 2008)]
[Proposed Rules]
[Pages 67825-67827]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-27192]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2008-0073; FRL8741-3]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Amendments to Ambient Air Quality Standards for Particulate 
Matter

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 
consists of amendments to the Commonwealth of Virginia's ambient air 
quality standards for particulate matter. This action is being taken 
under the Clean Air Act (CAA).

DATES: Written comments must be received on or before December 17, 
2008.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2008-0073 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: [email protected].

[[Page 67826]]

    C. Mail: EPA-R03-OAR-2008-0073, Cristina Fernandez, Chief, Air 
Quality Planning, 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-
2008-0073. 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: Gobeail McKinley, (215) 814-2033, or 
by e-mail at [email protected].

SUPPLEMENTARY INFORMATION: On January 7, 2008, the Commonwealth of 
Virginia submitted a formal revision to its State Implementation Plan. 
The SIP revision consists of amendments to the Commonwealth's existing 
ambient air quality standards in 9 VAC 5 Chapter 30.

I. Background

    Effective on September 16, 1997, EPA established two new standards 
for fine particulate matter (PM2.5) that applies to 
particles 2.5 micrometers in diameter or less (62 FR 38652). The two 
new PM2.5 standards were set at 15 micrograms per cubic 
meter ([mu]g/m3), based on the 3-year average of annual 
arithmetic mean PM2.5 concentrations from single or multiple 
community-oriented monitors, and 65 [mu]g/m3, based on the 
3-year average of the 98th percentile of 24-hour PM2.5 
concentrations at each population-oriented monitor within an area. 
Effective on December 18, 2006, EPA revised the level of the 24-hour 
PM2.5 standard to 35 [mu]g/m3, retained the level 
of the annual PM2.5 standard at 15 [mu]g/m3, 
retained the 24-hour PM10 standard at 150 [mu]g/
m3, and revoked the annual PM10 standard (71 FR 
61144).

II. Summary of SIP Revision

    The Commonwealth's SIP revision to the Virginia Regulations for the 
Control and Abatement of Air Pollution: 9 VAC 5 Chapter 30--Ambient Air 
Quality Standards incorporates the annual and 24-hour PM2.5 
national ambient air quality standards (NAAQS) that were established by 
the EPA on July 18, 1997 (62 FR 38652) and on October 17, 2006 (71 FR 
61144). The revision is consistent with the national ambient air 
quality standards set out in 40 CFR part 50. The SIP revision amends 
the Commonwealth's PM2.5 standard to add the new 24-hour 
standard of 35 [mu]g/m3, retains the current 24-hour 
standard of 65 [mu]g/m3 during the transition to the new 
standard, adds transitional language to clarify implementation of these 
standards, and removes obsolete language referencing the annual 
PM10 standard. The SIP revision also adds new reference 
conditions to make the state regulation consistent with 40 CFR part 50.

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

[[Page 67827]]

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.

III. Proposed Action

    EPA is proposing to approve the Virginia SIP revision for 
amendments to the existing air quality standards, 9 VAC 5 Chapter 30. 
The Commonwealth's SIP revision (9 VAC 5-30-65) includes an incorrect 
reference of the Federal Register document for the annual and 24-hour 
PM2.5 NAAQS that were established by the EPA on July 18, 
1997 (62 FR 38652). EPA will not promulgate a final approval rule until 
the Commonwealth of Virginia submits a correction to 9 VAC 5 Chapter 
30. EPA is soliciting public comments on the issues discussed in this 
document. These comments will be considered before taking final action.

IV. Statutory and Executive Order Reviews

    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 proposes to approve state law as 
meeting Federal requirements and does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
proposed 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);
     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 proposed rule, amending ambient air quality 
standards for particulate matter in the Commonwealth of Virginia, 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Nitrogen dioxide, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
oxides.

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

    Dated: November 6, 2008.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. E8-27192 Filed 11-14-08; 8:45 am]
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