[Federal Register Volume 70, Number 175 (Monday, September 12, 2005)]
[Proposed Rules]
[Pages 53746-53752]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17928]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[R03-OAR-2005-VA-0007;FRL-7966-6
Approval and Promulgation of Air Quality Implementation Plans;
VA; Redesignation of the City of Fredericksburg, Spotsylvania County,
and Stafford County Ozone Nonattainment Area to Attainment and Approval
of the Area's Maintenance Plan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve a redesignation request and a
State Implementation Plan (SIP) revision submitted by the Commonwealth
of Virginia. Virginia is requesting that the city of Fredericksburg,
Spotsylvania County, and Stafford County (the Fredericksburg
Nonattainment Area) be redesignated as attainment for the eight-hour
ozone national ambient air quality standard (NAAQS). The Commonwealth's
SIP revision establishes a maintenance plan for the Fredericksburg
Nonattainment Area that provides requirements for continued attainment
of the eight-hour ozone NAAQS for the next 10 years. EPA is proposing
approval of the redesignation request and revision to the Virginia SIP
in accordance with the requirements of the Clean Air Act (CAA).
DATES: Written comments must be received on or before October 12, 2005.
ADDRESSES: Submit your comments, identified by Regional Material in
EDocket (RME) ID Number R03-OAR-2005-VA-0007 by one of the following
methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
on-line instructions for submitting comments.
Agency Web site: http://www.docket.epa.gov/rmepub/ RME, EPA's
electronic public docket and comment system, is EPA's preferred method
for receiving comments. Follow the on-line instructions for submitting
comments.
E-mail: [email protected].
Mail: R03-OAR-2005-VA-0007, David Campbell, Chief, Air Quality
Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency,
Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket's normal hours of
operation, and
[[Page 53747]]
special arrangements should be made for deliveries of boxed
information.
Instructions: Direct your comments to RME ID No. R03-OAR-2005-VA-
0007. 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.docket.epa.gov/rmepub/, 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 RME, regulations.gov
or e-mail. The EPA RME and the Federal regulations.gov Web sites are 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 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
RME index at http://www.docket.epa.gov/rmepub/. 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 RME
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: Amy Caprio, (215) 814-2156, or by e-
mail at [email protected].
SUPPLEMENTARY INFORMATION: On May 2, 2005, Virginia Department of
Environmental Quality (VADEQ) formally submitted a redesignation
request for the Fredericksburg Nonattainment Area to attainment of the
eight-hour NAAQS for ozone. On May 4, 2005, Virginia submitted a
maintenance plan for the Fredericksburg Nonattainment Area as a SIP
revision, to assure continued attainment over the next 10 years.
I. Background
The Fredericksburg Nonattainment Area was designated as moderate
eight-hour ozone nonattainment status on April 30, 2004 (69 FR 23857),
based on its exceedance of the health-based standards for ozone. Under
section 107(d)(3)(E) of the CAA, the following five criteria must be
met for an ozone nonattainment area to be redesignated to attainment:
1. The area must meet the ozone NAAQS.
2. The area must have a fully approved SIP under section 110(k).
3. The area must show improvement in air quality due to permanent
and enforceable reductions in emissions.
4. The area must meet all requirements applicable under section 110
and part D.
5. The area must have a fully approved maintenance plan under
section 175A of the CAA.
II. Summary of Virginia's Submittal
The following is a description of how the Commonwealth of
Virginia's May 2, 2005 and May 4, 2005 submittals satisfy the five
requirements of section 107(d)(3)(E). EPA will discuss its evaluation
of the maintenance plan under its analysis of the redesignation
request. A more detailed description of the state submittal and EPA's
evaluation are included in a Technical Support Document (TSD) prepared
in support of this rulemaking action. A copy of the TSD is available,
upon request from the EPA Regional Office listed in the ADDRESSES
section of this document.
A. Attainment of the Ozone NAAQS in the Fredericksburg Nonattainment
Area
Section 181(b)(2)(A) of the CAA states that the EPA Administrator
shall determine whether an area has achieved the ozone standard based
on the design value of that area. The design value for an area is based
on the three-year average (2002-2004) of the monitored annual fourth-
highest daily maximum eight-hour average ozone concentration. In the
Fredericksburg Nonattainment Area, there is one ozone monitor, located
in Stafford County, that measures air quality with respect to ozone.
According to the Code of Federal Regulations, 40 CFR part 50, Appendix
I, which establishes the procedure for interpreting ozone monitoring
data, the Fredericksburg Nonattainment Area attained the ozone standard
for the most recent three-year period, 2002-2004. The data collected at
the Stafford County monitor satisfies the CA requirement that the
three-year average of the annual fourth-highest daily maximum eight-
hour average ozone concentration is less than or equal to 0.08 parts
per million (ppm). The Commonwealth of Virginia's request for
redesignation for the Fredericksburg Nonattainment Area indicates that
the data was quality assured in accordance with 40 CFR part 58. The
VADEQ uses the Aerometric Information Retrieval System (AIRS) as the
permanent database to maintain its data and quality assures the data
transfers and content for accuracy.
B. The Area Has a Fully Approved SIP Under Section 110(k) of the CAA
Stafford County is the only locality of the three in the
Fredericksburg Nonattainment Area that was subject to Federal ozone
requirements for an one-hour ozone nonattainment area. Stafford County
was a part of the Northern Virginia Ozone Nonattainment Area,
therefore, subject to SIP requirements for serious (section 182(c) of
the CAA) and severe (section 182(d) of the CAA) ozone nonattainment
areas. Certain control measures developed to meet the severe
nonattainment area requirements will continue to apply in Stafford
County.
Sections 182(a) through 182(d) of the CAA establish specific
requirements for nonattainment areas and for areas located in the Ozone
Transport Region (OTR). As mentioned, Stafford County is the only
jurisdiction in the Fredericksburg Nonattainment Area that was subject
to these provisions. Pursuant to section 110 of the CAA, EPA has
previously approved as part of the Commonwealth of Virginia's SIP
regulations and other measures that fully satisfy the requirements of
section 182(a) through 182(d), as described below:
1. Section 182(d) Requirements for Areas Designated Severe and Above
a. Requirements for annual emissions statements from industries;
b. Preconstruction review (permit) program for new industry and
expansions;
c. General conformity requirements;
d. Case-by-case control technology determinations for all major
volatile organic compounds (VOC) and nitrogen oxides (NOx)
sources not covered by an
[[Page 53748]]
EPA control technology guideline (CTG);
e. Requirement for vapor recovery controls for emissions from
filling vehicles with gasoline (Stage II);
f. Enhanced monitoring (source emissions) program: photochemical
assessment monitoring stations (PAMS);
g. National Low Emissions Vehicle (NLEV);
h. Oxygenated fuels program;
i. Requirement for controls for all major (25 tons per year (tpy))
VOC sources;
j. Requirement for controls for all major (25 tpy)) NOX
sources; and,
k. Requirement for major sources to pay a penalty fee.
2. Section 184(b) (Areas Located in OTR)
a. Regulations requiring reasonably available control technology
(RACT) with respect to all sources of VOC covered by a CTG;
b. VOC controls on landfills;
c. Corrections to existing regulatory program requiring controls
for certain source types;
d. The inclusion of Stafford County in the enhanced inspection and
maintenance (I/M) program;
e. VOC controls (Ozone Transport Commission rules); and,
f. NSR for the OTR.
3. Additional Plan Submittals
In addition to the above, the Commonwealth's SIP contains the
following previously approved elements that support Virginia's
attainment plan for the Fredericksburg Nonattainment Area.
a. Comprehensive inventory of emissions;
b. Proposed SIP revision to achieve a 15 percent reduction in VOC
emissions for the Washington DC-MD-VA nonattainment area;
c. Final SIP revision to achieve a 15 percent reduction in VOC
emissions for the Washington DC-MD-VA nonattainment area;
d. Final SIP revision, Phase I attainment plan, and revision to the
SIP to achieve a 15 percent reduction in VOC emissions and revision to
the 1990 base year emissions inventory for the Washington DC-MD-VA
nonattainment area;
e. Final SIP revision to the SIP to achieve a 15 percent reduction
in VOC emissions for the Washington DC-MD-VA nonattainment area;
f. Revised SIP revision, Phase I attainment plan for the Washington
DC-MD-VA nonattainment area/appendices; and,
g. Open burning regulations.
C. Demonstration of Permanent and Enforceable Improvement
Between 2002 and 2004, VOC emissions were reduced by 1.5 tons per
day (tpd) NOX emissions were reduced by 2.7 tpd, due to the
following permanent and enforceable measures implemented or in the
process of being implemented in the Fredericksburg Nonattainment Area:
1. Programs Current by in Effect
a. NLEV;
b. Open burning restrictions for Stafford County only;
c. CTG RACT requirements for Stafford County only;
d. Non-CTG RACT requirements for Stafford County only;
e. Stage I and Stage II vapor recovery requirements for Stafford
County only;
f. Reformulated gasoline requirements for Stafford County only;
g. Area source VOC regulations concerning portable fuel containers;
mobile vehicle refinishing; architectural and industrial maintenance
coatings; solvent cleaning; and, consumer product for Stafford County
only;
h. Motor vehicle fleet turnover with new vehicles meeting the Tier
2 standards; and,
i. Low-sulfur gasoline.
2. Other Mobile Programs
Additionally, the following programs are in place and are either
effective or due to become effective:
a. Heavy-duty diesel on-road (2004/2007) and low-sulfur on-road
(2006); final EPA approval January 18, 2001 (66 FR 5002); and
b. Non-road emission standards (2008) and off-road diesel fuel
(2007/2010); final EPA approval June 29, 2004 (69 FR 39858).
3. Additional Air Quality Improvements
Lastly, to further improve air quality and to provide room for
industrial and population growth while maintaining emissions in the
area to less then 2004 levels, the Commonwealth of Virginia has
initiated rulemaking to implement the following programs.
a. Implement the Stage I requirements in Fredericksburg and
Spotsylvania;
b. Implement the open burning restriction requirements in
Fredericksburg and Spotsylvania; and,
c. Implement existing source CTG RACT requirements in
Fredericksburg and Spotsylvania.
In addition to the permanent and enforceable measures, the
NOX Budget Training Program regulations took effect in 2003.
There are currently no subject sources located in the Fredericksburg
area, but this area can reasonably expect to indirectly benefit in
terms of improved regional air quality due to this program.
Additionally, the Clean Air Interstate Rule (CAIR), final EPA approval
May 12, 2005 (70 FR 25161), should have positive impacts on the
Commonwealth's air quality by the years 2009 and 2015.
D. Section 110 and Part D Requirements
Stafford County is the only locality in the Fredericksburg
Nonattainment Area that has been subject to Federal ozone requirements.
Prior to the eight-hour nonattainment area designations, Stafford
County was a part of the Northern Virginia Ozone Nonattainment Area and
thus subject to SIP requirements for serious and severe ozone
nonattainment areas. Therefore, Stafford County is the only area to be
subject to section 110(a)(2) and Part D requirements that were
applicable prior to the redesignation submittal. There are multiple
similarities within these requirements.
1. Section 110 Requirements
Section 110(a)(2) of the CAA contains general requirements for
nonattainment plans. Most of the provisions of this section are the
same as those contained in the pre-amended CAA. The Commonwealth of
Virginia has already fulfilled all pre-amendment CAA requirements
pertaining to Stafford County, which is the only county in the
Fredericksburg Nonattainment Area that is affected by these
requirements.
2. Part D Requirements
Virginia's existing SIP satisfies the requirements of Part D of the
CAA. Key elements of the Part D submittals are contained in Subpart 1
(Nonattainment Areas in General) and Subpart 2 (Additional Provisions
for Ozone Nonattainment Areas).
a. Subpart 1. Section 172(c), Nonattainment Plan Provisions, has
been met by a previous SIP revision, and its requirements are identical
to those found in section 110(a)(2) and Part D. Section 172(c)
requirements are as follows:
1. Provisions for implementation of all reasonably available
control measures;
2. Demonstration of reasonable further progress;
3. Comprehensive inventory of emissions;
4. Identification and quantification of new source emissions;
5. Permits for new and modified sources;
6. Enforceable emissions limitations;
7. Contingency measures;
8. Section 173(a) contains requirements for issuing permits,
[[Page 53749]]
including offsets and the application of the lowest achievable emission
rate (LAER); and
9. Section 176 requires the state to develop transportation and
general conformity procedures to be submitted as a SIP revision.
b. Subpart 2. The specific requirements of section 182(a) through
(d) have been met by the Commonwealth's SIP. These sections require
that specific control measures and other requirements be adopted and
implemented. These requirements were addressed above in section B. In
addition to sections 182(a) thru 182(d) requirements, Virginia had to
demonstrate that it would achieve a VOC emission reduction of 15
percent. Finally, the SIP had to include an attainment demonstration
supported by photochemical modeling.
3. Conformity Process
Section 176(c) of the CAA requires states to establish criteria and
procedures to ensure that Federally supported or funded projects
conform to the air quality planning goals in the applicable SIP. The
requirements to determine conformity applies to transportation plans,
programs and projects developed, funded or approved under Title 23
U.S.C. and the Federal Transit Act (``transportation conformity'') as
well as to all other Federally supported or funded projects (``general
conformity''). Section 176 further provides that state conformity
revisions must be consistent with the Federal conformity regulations
that the CAA required EPA to promulgate. Although Federal conformity
rule changes are still pending, EPA believes that it is reasonable to
interpret conformity requirements as not applying for purposes of
evaluating a redesignation request under section 107(d) so that EPA may
approve an ozone redesignation request notwithstanding the lack of a
fully approved conformity SIP. The rationale for this is based on a
combination of two factors. First, Federal conformity rules require
performance of conformity analysis even in the absence of Federally
approved states rules. Second, conformity provisions of the CAA
continue to apply after redesignation because areas are subject to a
maintenance plan which requires compliance with mobile budgets.
Therefore, because areas are subject to the conformity requirements
regardless of whether they are redesignated to attainment and must
implement conformity under Federal rules if state rules are not
approved, EPA believes it is reasonable to view these requirements as
not applying for purposes of evaluating a redesignation request.
Virginia submitted procedures to determine if systems-level highway
plans and other Federally-financed projects are in conformity with air
quality plans (``transportation conformity'') to EPA on January 20,
1997 and were deemed complete by operation. The EPA has not yet taken
action on this submittal. In the meantime, EPA is in the process of
incorporating these changes to the state regulation. Pending EPA
approval of the state regulation, Virginia will continue to make
transportation conformity determinations under the provision of 40 CFR
part 93, subpart A.
The Fredericksburg Area Metropolitan Planning Organization (FAMPO)
along with the Virginia Department of Motor Vehicles (DMV) provided
2002 mobile source input parameters for the development of all future
year inventories. As part of the SIP process, the recently submitted
maintenance plan will establish an emission budget to be used for
transportation conformity purposes. This mobile source emissions budget
represents the level of mobile emissions that can be emitted in the
area while supporting the air quality plan.
E. Maintenance Plan for the Fredericksburg Nonattainment Area
1. Maintenance Plan Requirements
A maintenance plan is a SIP revision that provides maintenance of
the relevant NAAQS in the area for at least 10 years after
redesignation. A maintenance plan consists of the following
requirements as outlined in section 175A of the CAA: (a) An attainment
inventory; (b) a maintenance demonstration; (c) a monitoring network;
(d) verification of continued attainment; and, (e) a contingency plan.
a. Attainment Inventory. An attainment inventory includes the
emissions during the time period associated with the monitoring data
showing attainment. VADEQ determined that the appropriate attainment
inventory year is 2004. That year establishes a reasonable year within
the three-year block of 2002-2004 as a baseline and accounts for
reductions attributed to implementation of the CAA requirements to
date. This inventory is based on actual emission for a ``typical summer
day'' and consist of a list of sources and their associated emissions.
b. Maintenance Demonstration. VADEQ's calculations of future
emissions of VOC and NOX from stationary and mobile sources
demonstrate that future emissions will not exceed the level of
Virginia's attainment inventory for a 10-year period following
redesignation (see Tables 1 and 2). Future emissions levels must
continue to remain at or below attainment levels for a period of 10
years after EPA redesignates the area from nonattainment to attainment.
The VADEQ's planning horizon for the maintenance plan is 2015.
Table 1.--Total VOC Emissions for 2004-2015
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2004 NOX 2015 NOX
Source category emissions (tpd) emissions (tpd)
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Mobile\1\.................................................................. 11.298 5.734
Nonroad.................................................................... 3.304 2.231
Area \2\................................................................... 14.070 15.303
Point...................................................................... 0.602 0.7824
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Total.................................................................. 29.274 24.0504
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\1\ Includes transportation conformity provisions.
\2\ Includes vehicle refueling emissions and the benefits of selected local controls (Stage I, CTG RACT, and
open burning).
\3\ Includes selected local controls (open burning).
[[Page 53750]]
Table 2.--Total NOX Emissions for 2004-2015
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2004 NOX 2015 NOX
Source category emissions (tpd) emissions (tpd)
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Mobile\1\.................................................................. 19.742 7.326
Nonroad.................................................................... 3.601 2.195
Area \3\................................................................... 3.465 4.742
Point...................................................................... 0.179 0.0258
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Total.................................................................. 26.987 14.2888
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\1\ Includes transportation conformity provisions.
\2\ Includes vehicle refueling emissions and the benefits of selected local controls (Stage I, CTG RACT, and
open burning).
\3\ Includes selected local controls (open burning).
c. Monitoring Network. VADEQ will continue to operate its current
air quality monitor in accordance with 40 CFR 58. Should measured
mobile source parameters change significantly over time, the
Commonwealth will perform a saturation monitoring study to determine
the need for, and location of, additional permanent monitors.
d. Verification of Continued Attainment. The Commonwealth of
Virginia has the legal authority to implement and enforce specified
measures necessary to attain and maintain the NAAQS. Key regulatory
requirements that VADEQ will keep in place to maintain attainment
include expanding CTG RACT, Stage I controls, and open burning
restrictions to the City of Fredericksburg and Spotsylvania County.
Virginia will track the progress of the maintenance demonstration
by periodically updating the emissions inventory. This tracking will
consist of annual and periodic evaluations. The annual evaluation will
consist of checks on key emissions trend indicators such as the annual
emissions update of stationary sources, the Highway Performance
Monitoring System (HPMS) vehicle miles traveled data reported to the
Federal Highway Administration, and other growth indicators. These
indicators will be compared to the growth assumptions used in the plan
to determine if the predicted versus the observed growth remains
relatively constant. The State will also develop and submit to EPA
comprehensive tracking inventories every three years during the
maintenance plan period, beginning in 2005. For purpose of performing
this tracking function for point sources, the Commonwealth will retain
the annual emission statement requirements for the maintenance area (9
VAC 5-20-160). Virginia will report the results of this tracking
program to EPA every three years.
e. Contingency Measures. According to the CAA, states that wish to
redesignate nonattainment areas to attainment must include in their
submittal to EPA contingency measures which will automatically take
effect should violations of the NAAQS occur in the former nonattainment
area. Contingency plan measures to be considered for implementation of
Fredericksburg Nonattainment Area for VOC and NOx emissions
above the regional emissions budget or two recorded ozone exceedances
include the preparation of a complete VOC and NOx emission
inventory (for exceeding the regional emissions budget scenario only)
and the implementation of one or more regulations concerning area
source VOC controls. These control measures consist of 9 VAC 5 Chapter
40, Article 42 Emission Standards for Portable Fuel Container Spillage;
9 VAC 5 Chapter 40, Article 48 Emission Standards for Mobile Equipment
Repair and Refinishing Operations; 9 VAC 5 Chapter 40, Article 49
Emission Standards for Architectural and Industrial Maintenance
Coatings; and 9 VAC 5 Chapter 40, Article 50 Emission Standards for
Consumer Products.
In the event that a ozone violation occurs at the Stafford County
monitor, the remaining area source VOC controls will be implemented. In
the event that a violation of the ozone standard occurs following the
implementation of VOC controls, and in any subsequent ozone season,
NOx and VOC RACT will be implemented for sources emitting
above 100 tpy that are located in Spotsylvania and Fredericksburg.
Regardless of the number of exceedances or violations noted, the
regulations controlling VOC emissions from area sources (9 VAC 5
Chapter 40, Article 42; 9 VAC 5 Chapter 40, Article 48; 9 VAC 5 Chapter
40, Article 49; and 9 VAC 5 Chapter 40, Article 50) will be expanded to
Fredericksburg and Spotsylvania County such that these regulations will
take effect in 2008, or as expeditiously as possible thereafter in
order to provide additional air quality benefits.
2. Requirement for Continued Maintenance
Section 175A(b) of the CAA will also require The Commonwealth of
Virginia to submit a revision to the SIP eight years after the original
redesignation request is approved to provide for maintenance of the
NAAQS in the Fredericksburg Nonattainment Area for an additional 10
years following the first 10-year period.
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
[[Page 53751]]
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 extend 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, 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 Clean Air Act, 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. Proposed Action
The EPA is proposing to approve the Commonwealth of Virginia's May
2, 2005 request for the Fredericksburg ozone nonattainment area to
attainment of the eight-hour NAAQS for ozone because the requirements
for approval have been satisfied. EPA is also proposing to approve the
associated maintenance plan for this area as required under 175A of the
CAA, as a revision to the Virginia SIP, which was submitted on May 4,
2005. 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
standard, and does not alter the relationship or the distribution of
power and responsibilities established in the Clean Air Act. This
proposed rule also is not subject to Executive Order 13045 (62 FR
19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. 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 Clean Air Act. 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, 1966), 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 rule proposing to approve the redesignation of the
Fredericksburg Ozone Nonattainment Area to attainment and to approve
the associated maintenance plan, 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
40 CFR Part 52
Environmental protection, Air pollution control, Nitrogen Oxides,
Ozone, Reporting and recordkeeping requirements, Volatile organic
compounds.
40 CFR Part 81
Air pollution control, National Parks, Wilderness Areas.
Authority: 42 U.S.C. 7401 et seq.
[[Page 53752]]
Dated: September 1, 2005.
Richard J. Kampf,
Acting Regional Administrator, Region III.
[FR Doc. 05-17928 Filed 9-9-05; 8:45 am]
BILLING CODE 6560-50-M