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Approval and Promulgation of Air Quality Implementation Plans; Virginia; Amendments to the Ambient Air Quality Standards
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: January 6, 2006 (Volume 71, Number 4)]
[Proposed Rules]
[Page 892-894]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06ja06-10]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2005-VA-0016; FRL- 8019-7]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Amendments to the Ambient Air Quality Standards
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 the amendments of the Commonwealth's existing ambient air
quality standards. This action is being taken under the Clean Air Act
(CAA or the Act).
DATES: Written comments must be received on or before February 6, 2006.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2005-VA-0016 by one of the following methods:
A. http://www.regulations.gov. 
Follow the on-line
instructions for submitting comments.
B. E-mail: morris.makeba@epa.gov.
C. Mail: EPA-R03-OAR-2005-VA-0016, Makeba Morris, 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-
2005-VA-0016. 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 a
"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: Rose Quinto, (215) 814-2182, or by e-
mail at quinto.rose@epa.gov.
SUPPLEMENTARY INFORMATION:
[[Page 893]]
I. Background
In 1997, EPA adopted an 8-hour ozone national ambient air quality
standard (NAAQS) with a level of 0.08 parts per million (ppm) to
provide greater protection to public health than the previous standard
of 0.12 ppm averaged over a 1-hour block of time (62 FR 38894, July 18,
1997). At the same time, EPA established a new standard for fine
particulate matter (PM2.5) that applies to particles 2.5
microns in diameter or less (62 FR 38711, July 18, 1997). These
standards became effective on September 16, 1997 and are located in 40
CFR part 50.
On September 26, 2005, the Commonwealth submitted a SIP revision
that amends the existing Virginia Regulations for the Control and
Abatement of Air Pollution (9 VAC 5 Chapter 30, Ambient Air Quality
Standards). This amendment includes the NAAQS for the 8-hour ozone and
PM2.5, as well as general revisions to the Commonwealth's
regulations consistent with 40 CFR part 50.
II. Summary of SIP Revision
The Commonwealth's revision incorporates the 1997 NAAQS for the 8-
hour ozone and PM2.5 standards into 9 VAC 5 Chapter 30. This
SIP revision provides that the 8-hour primary and secondary ozone
ambient air quality standards are met when the average of the fourth
highest daily maximum 8-hour average ozone concentration is less than
or equal to 0.08 ppm, averaged over three consecutive years. In
addition, the SIP revision adds a new PM2.5 ambient air
quality standard. The standards incorporated in this SIP revision are
65 micrograms per cubic meter based on a 24-hour average concentration
and 15.0 micrograms per cubic meter annual arithmetic mean concentration.
The other SIP revisions incorporated into 9 VAC 5 Chapter 30, are
amendments to the ambient air quality standards for sulfur dioxide,
carbon monoxide, ozone (1-hour), PM10, nitrogen dioxide, and
lead, 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 is generated or developed
before the commencement of a voluntary environmental assessment; (2)
that is prepared independently of the assessment process; (3) that
demonstrates a clear, imminent and substantial danger to the public
health or environment; or (4) that is 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 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
EPA's review of this material indicates that the amendments to 9
VAC 5 Chapter 30 are consistent with 40 CFR part 50. EPA is proposing
to approve the Virginia SIP revision for 9 VAC 5 Chapter 30, which was
submitted on September 26, 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
[[Page 894]]
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 (59 FR 22951, 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 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, 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 proposed rule pertaining to the amendments of Virginia's
ambient air quality standards, 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, Carbon monoxide,
Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 28, 2005.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. E6-30 Filed 1-5-06; 8:45 am]
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