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Approval and Promulgation of Air Quality Implementation Plans; Virginia; Amendments to Existing Regulation Provisions Concerning Maintenance, Nonattainment, and Prevention of Significant Deterioration Areas
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: June 12, 2006 (Volume 71, Number 112)]
[Proposed Rules]
[Page 33669-33672]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12jn06-30]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2005-VA-0010; FRL-8182-9]
Approval and Promulgation of Air Quality Implementation Plans; Virginia;
Amendments to Existing Regulation Provisions Concerning Maintenance,
Nonattainment, and Prevention of Significant Deterioration Areas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve State Implementation Plan (SIP)
revisions submitted by the Commonwealth of Virginia. These revisions
consist of amendments to state regulation provisions concerning
maintenance, nonattainment, and prevention of significant deterioration
(PSD) areas for incorporation into the Virginia SIP. This action is
being taken under the Clean Air Act (CAA or the Act).
DATES: Written comments must be received on or before July 12, 2006.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2005-VA-0010 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-0010, 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-0010. 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 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 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
[[Page 33670]]
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: Ellen Wentworth, (215) 814-2034, or by
e-mail at wentworth.ellen@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On August 15, 17, 19, September 28, and October 3, 2005, the
Commonwealth of Virginia, Department of Environmental Quality,
submitted revisions to its SIP. These revisions consisted of amendments
to Virginia's regulations pertaining to nonattainment, maintenance, and
prevention of significant deterioration (PSD) areas. More detailed
information on these proposed revisions can be found in the technical
support document (TSD) prepared for this rulemaking.
Listed below is a summary of each of the revisions that is being
proposed for incorporation into the Virginia SIP.
II. Summary of SIP Revisions
A. On August 15, 2005, the Commonwealth of Virginia submitted a
revision to its SIP. This revision eliminates the air quality
maintenance area (AQMA) concept found in 9 VAC 5-20-203, which was
promulgated by the EPA in the 1970's, and replaces it with the
maintenance area concept consistent with the 1990 Clean Air Act
Amendments (CAAA). This action will not result in the backsliding of
any control measures that have been submitted by the Commonwealth and
approved by EPA into the Commonwealth of Virginia SIP. The August 15,
2005 revision also reflects the redesignation of the Hampton Roads Area
to attainment of the 1-hour ozone national ambient air quality
standards (NAAQS) (62 FR 34408, June 26, 1997), by adding the area to
the list of ozone maintenance areas found in 9 VAC 5-20-203.1, and
deleting the area from the list of 1-hour ozone nonattainment areas
found in 9 VAC 5-20-204.1(c). Additionally, this revision removes the
exclusion of the Hampton Roads Area from the list of PSD areas found in
9 VAC 5-20-205.A.4(f).
B. On August 17, 2005, the Commonwealth of Virginia submitted a
revision to its SIP. This revision reflects the redesignation of the
Richmond 1-hour ozone nonattainment area to attainment (62 FR 61237,
November 17, 1997), of the 1-hour standard by amending 9 VAC 5-20-
204.1(b) to remove the Richmond Area from the list of areas regulated
as nonattainment areas, and adding it to the list of maintenance areas
found in 9 VAC 5-20-203.1. The revision also reflects the removal of
the exemption of the Richmond Area from the list of PSD areas found in
9 VAC 5-20-205.A(e).
C. On August 19, 2005, the Commonwealth of Virginia submitted a
revision to its SIP. This revision reflects the first repeal of the 1-
hour ozone NAAQS (63 FR 31087, June 5, 1998), by removing the White Top
Mountain Area from the list of 1-hour ozone nonattainment areas found
in 9 VAC 5-20-204.1(b). The revision further amends 9 VAC 5-20-205.A(4)
by removing the exemption of the White Top Mountain Area from the list
of areas subject to regulation as a PSD area.
In the June 5, 1998 (63 FR 31087) final rulemaking, the 1-hour
ozone standard was repealed for areas that had not measured a current
violation of the 1-hour standard. All of Smyth County, Virginia,
including the White Top Mountain Area, was one of the areas where the
1-hour standard no longer applied. The August 19, 2005 SIP revision
reflects this repeal of the 1-hour ozone NAAQS by removing the White
Top Mountain Area from the list of 1-hour ozone nonattainment areas in
9 VAC 5-20-204.1(b) and removing its exclusion from the list of PSD
areas in 9 VAC 5-20-205.A(4). However, in a 1999 court decision, EPA's
previous determinations on the applicability of the 1-hour ozone
standard (63 FR 31014 June 5, 1998), were challenged, and as a result,
on October 25, 1999 (64 FR 57424), EPA proposed that the 1-hour ozone
standard would be reinstated in those areas where it had previously
been revoked and the associated designations and classifications that
previously applied in such areas with respect to the 1-hour NAAQS would
also be reinstated. In a July 20, 2000 (65 FR 45182) final rule, EPA
reinstated the White Top Mountain Area as a rural transport (marginal)
ozone nonattainment area under the 1-hour ozone NAAQS. The effective
date for the reinstatement of the 1-hour ozone NAAQS in the White Top
Mountain Area was January 16, 2001 (65 FR 45182).
On April 30, 2004 (69 FR 23951), EPA published the first phase of
its final rule to implement the 8-hour ozone NAAQS (Phase I Rule). Also
on April 30, 2004 (69 FR 23858), EPA published 8-hour ozone
designations for all areas of the country. For most areas, including
the White Top Mountain Area, the designations under the 8-hour ozone
NAAQS became effective on June 15, 2004. The Phase I Rule provided that
the 1-hour ozone NAAQS would no longer apply for an area one year
following the effective date of the area's designation for the 8-hour
ozone NAAQS. On August 3, 2005 (70 FR 44470), EPA issued a final rule
that codified the revocation of the 1-hour standard for those areas
with effective 8-hour ozone designations. On June 15, 2005, all of
Smyth County, Virginia was no longer subject to the 1-hour ozone NAAQS
and was designated attainment of the 8-hour ozone NAAQS. Now that the
1-hour standard has been revoked and the White Top Mountain Area is
designated attainment for all NAAQS, the only permitting program
Virginia must have under Title 1 of the CAA is the PSD program.
Therefore, EPA can now approve these changes to 9 VAC 5-20-204.1(b) and
9 VAC 5-20-205.A(4) for the White Top Mountain Area that were submitted
on August 19, 2005 into the Virginia SIP.
D. On September 28, 2005, the Commonwealth of Virginia submitted a
revision to its SIP. The revision consists of updates to existing
regulations by incorporating the new 8-hour ozone nonattainment areas
into the list of Virginia's nonattainment areas found in 9 VAC 5-20-
204.A and revising the list of PSD areas found in 9 VAC 5-20-205.A. The
revision also adds a provision, 9 VAC 5-20-204.B., which removes the
severe area program in the Northern Virginia Ozone Nonattainment Area
as the area was constituted under the 1-hour standard. Because the
severe area program imposed more stringent requirements than required
under section 184 of the CAA in that area, Virginia did not need to
have a separate new source review (NSR) program meeting the section 184
requirements. On January 6, 2006, (FR 71 890), EPA proposed to approve
a SIP revision to implement the NSR program required under section 184
of the CAA in Virginia's portion of the Ozone Transport Region (OTR).
EPA is proposing approval of the September 28, 2005 SIP revision
contingent upon EPA issuing a final action approving the January 6,
2006 (71 FR 890) rulemaking. It should be noted that since the
September 28, 2005 SIP revision submittal, EPA has redesignated the
Fredericksburg (December 23, 2005, 70 FR 76165), and Shenandoah
National Park (January 3, 2006, 71 FR 24) areas
[[Page 33671]]
to attainment of the 8-hour ozone NAAQS.
The revision to 9 VAC 5-20-205.A amends the list of PSD areas by
deleting the list of specific localities and incorporating language
indicating that the areas subject to PSD are those areas that are not
designated as nonattainment in 9 VAC 5-20-204.A. The September 28, 2005
SIP submittal also removes mercury, beryllium, asbestos, and vinyl
chloride from the list of pollutants found in 9 VAC 5-20-205.B for
which PSD areas are defined. The 1990 Amendments to the CAA at section
112(b)(6) exempted hazardous air pollutants (HAPs) listed under section
112(b)(1) from the PSD requirements in part C of the CAA. These HAPS
include: arsenic, asbestos, benzene, beryllium, mercury, radionuclides,
and vinyl chloride, all of which were previously regulated under the
PSD rules. Virginia has consequently removed these pollutants from 9
VAC 5-205.B to conform to the 1990 CAA Amendments.
E. On October 3, 2005, the Commonwealth of Virginia submitted a
revision to its SIP. This revision updates existing regulations to 9
VAC 5-20-204.A.2 by changing the nonattainment classification of the
Richmond 8-hour ozone nonattainment area from ``moderate'' to
``marginal.'' This change reflects EPA's reclassification of the
Richmond Area which was published on September 22, 2004 (69 FR 56697).
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 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 is proposing to approve the Commonwealth of Virginia's SIP
revisions amending existing regulations pertaining to nonattainment,
maintenance and PSD areas which were submitted on August 15, 17, 19,
September 28, and October 3, 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
(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,
[[Page 33672]]
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 amendments to existing regulation
provisions concerning Virginia's nonattainment, maintenance, and PSD
areas, 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, Nitrogen dioxide,
Ozone, Reporting and recordkeeping requirements, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 1, 2006.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. E6-9081 Filed 6-9-06; 8:45 am]
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