[Federal Register Volume 77, Number 209 (Monday, October 29, 2012)]
[Rules and Regulations]
[Pages 65490-65493]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-26403]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2012-0444; FRL-9746-3]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Fredericksburg 8-Hour Ozone Maintenance Area Revision to 
Approved Motor Vehicle Emissions Budgets

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving the Commonwealth of Virginia's State 
Implementation Plan (SIP) revision submitted by the Virginia Department 
of Environmental Quality (VADEQ) on September 26, 2011. The SIP 
revision updates the 2009 and 2015 motor vehicle emission budgets 
(MVEBs) in the Fredericksburg 8-Hour Ozone Maintenance Area 
(Fredericksburg Area) by replacing the previously approved MVEBs with 
budgets developed using EPA's Motor Vehicle Emissions Simulator 
emissions model (MOVES2010a). The revised MVEBs continue to demonstrate 
maintenance of the 1997 8-hour national ambient air quality standard 
(NAAQS) for ozone. This action is being taken under the Clean Air Act 
(CAA).

DATES: 
    Effective Date: This final rule is effective on November 28, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2012-0444. All documents in the docket are listed in 
the 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 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: Gregory Becoat, (215) 814-2036, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On August 6, 2012 (77 FR 46672), EPA published a notice of proposed 
rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed 
approval of the Virginia SIP revision that updates the 2009 and 2015 
MVEBs in the Fredericksburg Area by replacing the previously approved 
MVEBs with budgets developed using MOVES2010a. By EPA's finalizing the 
proposed approval, the newly submitted MOVES2010a MVEBs will replace 
the existing, MOBILE6.2-based budgets in Virginia's SIP and must then 
be used in future transportation conformity analyses for the 
Fredericksburg Area according to the transportation conformity rule. 
See 40 CFR 93.118. The previously approved budgets will no longer be 
applicable for transportation conformity purposes. Additionally, with 
the approval of the MOVES2010a-based MVEBs, the regional transportation 
conformity grace period for not using MOVES2010a for the pollutants 
included in these budgets will end for the Fredericksburg Area on the 
effective date of this final approval. See 75 FR 9411, 9414 (March 2, 
2010) for

[[Page 65491]]

background on MOVES2010a and Section II.C for details. EPA received no 
comments on the NPR to approve Virginia's SIP revision.

II. Summary of SIP Revision

    On September 26, 2011, the Commonwealth of Virginia through VADEQ 
submitted a SIP revision with MVEBs based on MOVES2010a for the years 
2009 and 2015 to help ensure that the Fredericksburg Area can 
demonstrate transportation conformity using MOVES2010a MVEBs once the 
grace period expires as discussed in more detail in the NPR.
    States that revise their existing SIPs to include MVEBs based on 
MOVES2010a must show that the SIP continues to meet applicable 
requirements with the new level of motor vehicle emissions contained in 
the budgets. EPA has determined that the Fredericksburg Area 
maintenance plan continues to serve its intended purpose with the 
MOVES2010a-based MVEBs and that the budgets meet the adequacy criteria 
in the conformity rule at 40 CFR 93.118(e)(4).

III. Final Action

    EPA is approving the MOVES2010a-based MVEBs submitted by Virginia 
for use in determining transportation conformity in the Fredericksburg 
Area because the submitted budgets will continue to keep emissions 
below the attainment level and maintain air quality and continue to 
demonstrate maintenance of the 1997 8-hour ozone NAAQS. On the 
effective date of this rulemaking, the submitted MOVES2010a-based MVEBs 
will replace the existing, MOBILE6.2-based budgets in the 
Fredericksburg 8-Hour Ozone Maintenance Plan and will be used in future 
transportation conformity analyses for the Fredericksburg Area. The 
previously approved MOBILE6.2-based budgets will no longer be 
applicable for transportation conformity purposes. The following table 
compares the nitrogen oxide (NOX) MVEBs developed using 
MOBILE6.2 to the inventories developed using MOVES2010a.

 Fredericksburg Maintenance Area Mobile Source Emissions Comparison Tons
                               NOX Per Day
------------------------------------------------------------------------
                                             MOBILE6.2
                  Year                         MVEB*        MOVES2010a
------------------------------------------------------------------------
2004....................................          19.742          24.064
2009....................................          13.062          17.615
2015....................................           7.576           9.933
------------------------------------------------------------------------
* Includes conformity buffers.

IV. 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 that: (1) Are generated or developed 
before the commencement of a voluntary environmental assessment; (2) 
are prepared independently of the assessment process; (3) demonstrate a 
clear, imminent and substantial danger to the public health or 
environment; or (4) 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 Virginia 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.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA 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 CAA. 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

[[Page 65492]]

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 CAA; 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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by December 28, 2012. 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 2009 and 2015 MVEBs in the 
Fredericksburg 8-Hour Area using MOVES2010a 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: October 11, 2012.
W.C. Early,
Acting Regional Administrator, Region III.

    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 (e) is amended by revising 
the entry for the 8-Hour Ozone Maintenance Plan for the Fredericksburg 
VA Area. The amendments read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (e) EPA-approved nonregulatory and quasi-regulatory material.

----------------------------------------------------------------------------------------------------------------
                                                             State
   Name of non- regulatory SIP          Applicable         submittal     EPA approval date        Additional
             revision                geographic area         date                                explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
8-Hour Ozone Maintenance Plan for  Spotsylvania and            9/26/11  10/29/12 [Insert     Revised 2009 and
 the Fredericksburg VA Area.        Stafford Counties;                   page number where    2015 motor vehicle
                                    City of                              the document         emission budgets
                                    Fredericksburg.                      begins].             for NOX.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
3. Section 52.2424 is amended by adding paragraph (c) to read as 
follows:


Sec.  52.2424  Motor vehicle emissions budgets.

* * * * *
    (c) EPA approves the following revised 2009 and 2015 motor vehicle 
emissions budgets (MVEBs) for the Fredericksburg 8-Hour Ozone 
Maintenance Area submitted by the Virginia Department of Environmental 
Quality (VADEQ) on September 26, 2011:

------------------------------------------------------------------------
                                                           Tons per day
       Applicable geographic area              Year          (TPD) NOX
------------------------------------------------------------------------
Fredericksburg Area (Spotsylvania and               2009          17.615
 Stafford Counties and City of
 Fredericksburg)........................
Fredericksburg Area (Spotsylvania and               2015           9.933
 Stafford Counties and City of
 Fredericksburg)........................
------------------------------------------------------------------------


[[Page 65493]]

[FR Doc. 2012-26403 Filed 10-26-12; 8:45 am]
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