[Federal Register Volume 71, Number 1 (Tuesday, January 3, 2006)]
[Rules and Regulations]
[Pages 24-27]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-24364]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R03-OAR-2005-VA-0013; FRL-8012-3]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Redesignation of the Shenandoah National Park Ozone
Nonattainment Area To Attainment and Approval of the Area's Maintenance
Plan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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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 Shenandoah National Park area (the SNP 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 SNP 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 SNP 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 February 2,
2006.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2005-VA-0013. 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: Amy Caprio, (215) 814-2156, or by e-
mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On November 4, 2005 (70 FR 67109), EPA published a notice of
proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR
proposed approval of Virginia's redesignation request and a SIP
revision that establishes a maintenance plan for the SNP area that sets
forth how the SNP 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 September 21, 2005 and September 23, 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 adverse 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
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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.
III. Final Action
EPA is approving the Commonwealth of Virginia's September 21, 2005
redesignation request and September 23, 2005 maintenance plan because
the requirements for approval have been satisfied. EPA has evaluated
Virginia's redesignation request, submitted on September 21, 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 SNP area has attained
the 8-hour ozone standard. The final approval of this redesignation
request will change the designation of the SNP area from nonattainment
to attainment for the 8-hour ozone standard. EPA is approving the
associated maintenance plan for this area, submitted on September 23,
2005, as a revision to the Virginia SIP. EPA is approving the
maintenance plan for the SNP 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 SNP area
is subject to the CAA's requirements for basic 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
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. 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 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 (Public Law 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 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 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
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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 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.
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 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 March 6, 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 SNP 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, Madison & Page Cos.
(Shenandoah NP), VA Area at the end of the table to read as follows:
Sec. 52.2420 Identification of plan.
* * * * *
(e) * * *
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Name of non-regulatory SIP Applicable State submittal Additional
revision geographic area date EPA approval date explanation
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* * * * * * *
8-Hour Ozone Maintenance Plan Madison County 9/23/05........... 1/3/06 [Insert ...................
for the Madison & Page Cos. (part) and Page page number where
(Shenandoah NP), VA Area. County (part). the document
begins].
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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
Madison & Page Cos. (Shenandoah NP), VA Area to read as follows:
Sec. 81.347 Virginia.
* * * * *
Virginia--Ozone (8-Hour Standard)
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Designation Classification
Designated area ---------------------------------------------------------------------------------------------------------------
Date 1 Type Date 1 Type
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* * * * * * *
Madison & Page Cos. (Shenandoah NP), VA
Area:
Madison County (part)............... 1/3/06 Attainment ........... .........................................
Page County (part).................. 1/3/06 Attainment ........... .........................................
* * * * * * *
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1 This date is June 15, 2004, unless otherwise noted.
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[FR Doc. 05-24364 Filed 12-30-05; 8:45 am]
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