[Federal Register Volume 70, Number 246 (Friday, December 23, 2005)]
[Rules and Regulations]
[Pages 76165-76168]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-24363]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R03-OAR-2005-VA-0007; FRL-8012-2]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; 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: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is approving a redesignation request and a State
Implementation Plan (SIP) revision submitted by the Commonwealth of
Virginia. The Virginia Department of Environmental Quality (VADEQ) is
requesting that the City of Fredericksburg, Spotsylvania County, and
Stafford County (the Fredericksburg area) be redesignated as attainment
for the 8-hour ozone national ambient air quality standard (NAAQS). In
conjunction with its redesignation request, the Commonwealth submitted
a SIP revision consisting of a maintenance plan for the Fredericksburg
area that provides for continued attainment of the 8-hour ozone NAAQS
for the next 10 years. EPA is also approving the adequacy determination
for the motor vehicle emission budgets (MVEBs) that are identified in
the 8-hour maintenance plan for the Fredericksburg area for purposes of
transportation conformity, and is approving those MVEBs. EPA is
approving the redesignation request and the maintenance plan revision
to the Virginia SIP in accordance with the requirements of the CAA.
DATES: Effective Date: This final rule is effective on January 23,
2006.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2005-VA-0007. All documents in the docket are listed
in the http://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 http://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: Amy Caprio, (215) 814-2156, or by e-
mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On September 12, 2005 (70 FR 53746), EPA proposed approval of a
redesignation request and maintenance plan submitted by the
Commonwealth of Virginia for the Fredericksburg area. On September 30,
2005 (70 FR 57238), EPA withdrew the September 12, 2005 proposed rule.
On November 2, 2005 (70 FR 66316), EPA published a notice of
proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR
proposed approval of both Virginia's redesignation request and a SIP
revision that establishes a maintenance plan for the Fredericksburg
area that sets forth how the Fredericksburg area will maintain
attainment of the 8-hour ozone NAAQS for the next 10 years. The formal
SIP revision was submitted by the VADEQ on May 2, 2005 and May 4, 2005.
Other specific requirements of Virginia's redesignation request SIP
revision for the maintenance plan, and the rationale for EPA's proposed
action are explained in the NPR and will not be restated here. No
public comments were received on the NPR.
II. 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,''
[[Page 76166]]
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.
III. Final Action
EPA is approving the Commonwealth of Virginia's May 2, 2005
redesignation request and May 4, 2005 maintenance plan because the
requirements for approval have been satisfied. EPA has evaluated
Virginia's redesignation request, submitted on May 2, 2005, and
determined that it meets the redesignation criteria set forth in
section 107(d)(3)(E) of the CAA. EPA believes that the redesignation
request and monitoring data demonstrate that the Fredericksburg area
has attained the 8-hour ozone standard. The final approval of this
redesignation request will change the designation of the Fredericksburg
area from nonattainment to attainment for the 8-hour ozone standard.
EPA is approving the associated maintenance plan for this area,
submitted on May 4, 2005, as a revision to the Virginia SIP. EPA is
approving the maintenance plan for the Fredericksburg area because it
meets the requirements of section 175A. EPA is also approving the MVEBs
submitted by Virginia for this area in conjunction with its
redesignation request. The Fredericksburg area is subject to the CAA's
requirements for moderate ozone nonattainment areas until and unless it
is redesignated to attainment.
IV. Statutory and Executive Order Reviews
A. General Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
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 approves state law as meeting Federal requirements and
imposes no additional requirements beyond those imposed by state law.
Redesignation of an area to attainment under section 107(d)(3)(e) of
the Clean Air Act does not impose any new requirements on small
entities. Redesignation is an action that affects the status of a
geographical area and does not impose any new regulatory requirements
on sources. Accordingly, the Administrator certifies that this 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 approves 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 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 affect the status of a geographical area, does not
impose any new requirements on sources, or allow the state to avoid
adopting or implementing other requirements, and does not alter the
relationship or the distribution of power and responsibilities
established in the Clean Air Act. This 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. Redesignation is an
action that affects the status of a geographical area and does not
impose any new requirements on sources. 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
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.
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
[[Page 76167]]
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
rule 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. This rule 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 Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by February 21, 2006. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule 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, to approve the redesignation request, maintenance plan
and adequacy determination for MVEBs for the Fredericksburg area, may
not be challenged later in proceedings to enforce its requirements.
(See section 307(b)(2).)
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Ozone, Nitrogen dioxide, Reporting and recordkeeping
requirements, Volatile organic compounds.
40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Dated: December 13, 2005.
Donald S. Welsh,
Regional Administrator, Region III.
0
40 CFR parts 52 and 81 are amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for 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 adding an
entry for the 8-Hour Ozone Maintenance Plan, Fredericksburg, VA Area at
the end of the table to read as follows:
Sec. 52.2420 Identification of plan.
* * * * *
(e) * * *
----------------------------------------------------------------------------------------------------------------
Name of non-regulatory SIP Applicable geographic State Additional
revision area submittal date EPA approval date explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
8-Hour Ozone Maintenance Plan City of Fredericksburg, 5/4/05 12/23/05 [Insert
for the Fredericksburg VA Area. Spotsylvania County, page number where
and Stafford County. the document
begins].
----------------------------------------------------------------------------------------------------------------
PART 81--[AMENDED]
0
1. The authority citation for Part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. Section 81.347 is amended by revising the ozone table entry for the
Fredericksburg, VA Area to read as follows:
Sec. 81.347 Virginia.
* * * * *
Virginia--Ozone (8-Hour Standard)
----------------------------------------------------------------------------------------------------------------
Designation \a\ Category/classification
Designated area ---------------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Fredericksburg, VA Area:
City of Fredericksburg.... 12/23/05 Attainment......................
Spotsylvania County....... 12/23/05 Attainment......................
Stafford County........... 12/23/05 Attainment......................
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
[[Page 76168]]
[FR Doc. 05-24363 Filed 12-22-05; 8:45 am]
BILLING CODE 6560-50-P