[Federal Register Volume 72, Number 4 (Monday, January 8, 2007)]
[Rules and Regulations]
[Pages 653-656]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-22552]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2006-0648; FRL-8266-1]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Identification of the Northern Virginia PM2.5 Nonattainment
Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action to approve revisions to the
Virginia State Implementation Plan (SIP). The revision consists of the
addition of counties in Northern Virginia which were designated as
nonattainment for the fine particulate (PM2.5) national ambient air
quality standard (NAAQS). EPA is approving this revision in accordance
with the requirements of the Clean Air Act.
DATES: This rule is effective on March 9, 2007 without further notice,
unless EPA receives adverse written comment by February 7, 2007. If EPA
receives such comments, it will publish a timely withdrawal of the
direct final rule in the Federal Register and inform the public that
the rule will not take effect.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2006-0648 by one of the following methods:
A. www.regulations.gov. Follow the on-line instructions for
submitting comments.
B. E-mail: [email protected].
C. Mail: EPA-R03-OAR-2006-0648, Linda Miller, Acting Chief, Air
Quality Planning and Analysis Branch,
[[Page 654]]
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-
2006-0648. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at 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 www.regulations.gov or e-mail.
The 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 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
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 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: Linda Miller, (215) 814-2068, or by e-
mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On May 8, 2006, the Commonwealth of Virginia submitted a formal
revision to its State Implementation Plan (SIP). The SIP revision
consists of the addition of counties in the Northern Virginia PM2.5
nonattainment area to the air quality regulations in the Virginia Code
(9 VAC 5-20-204). This section of the Virginia regulations identifies
areas included in nonattainment areas for the National Ambient Air
Quality Standards (NAAQS).
On July 18, 1997, EPA revised the NAAQS for particulate matter to
add a new standard for fine particulates (PM2.5), airborne
particles with a nominal aerodynamic diameter of 2.5 micrometers or
less. The health-based standards for air quality are the
PM2.5 annual NAAQS, 15 micrograms per cubic meter, based on
a 3-year average of annual mean PM2.5 concentrations; and
the 24-hour NAAQS. 65 micrograms per cubic meter based on a 3-year
average of the 98th percentile of 24-hour concentrations. Nonattainment
areas for the fine particle standard (PM2.5) were
promulgated by EPA on January 5, 2005 as required by section 197(d) of
the Clean Air Act (CAA). Additional information on the designation
process and requirements for nonattainment areas is found in the
Federal Register document for the designations (70 FR 944 and 71 FR
19844). The designation of these counties and local jurisdictions in a
PM2.5 nonattainment area is not the subject of this
rulemaking.
II. Summary of SIP Revision
The Commonwealth of Virginia is amending 9 VAC 5-20-204.A.3 to
include the previously designated counties and local jurisdictions into
the Northern Virginia portion of the Washington, DC PM2.5
nonattainment area. The counties and local areas included in the
nonattainment area are Arlington County, Fairfax County, Loudon County,
Prince William, Alexandria City, Fairfax City, Falls Church City,
Manassas City, and Manassas Park City. This SIP revision approves the
addition of these counties and local jurisdictions to the planning
areas listed in the Virginia Code (9 VAC 5-20-204.A.3).
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
[[Page 655]]
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. Final Action
EPA is approving the revision (VA D05) which identifies areas
designated as part of the Northern Virginia portion of the Washington,
DC PM2.5 nonattainment area. EPA is publishing this rule
without prior proposal because the Agency views this as a
noncontroversial amendment and anticipates no adverse comment. The
designation process included opportunity for public comment. In
addition, there were no public comments in the State public
participation process. However, in the ``Proposed Rules'' section of
today's Federal Register, EPA is publishing a separate document that
will serve as the proposal to approve the SIP revision if adverse
comments are filed. This rule will be effective on March 9, 2007
without further notice unless EPA receives adverse comment by February
7, 2007. If EPA receives adverse comment, EPA will publish a timely
withdrawal in the Federal Register informing the public that the rule
will not take effect. EPA will address all public comments in a
subsequent final rule based on the proposed rule. EPA will not
institute a second comment period on this action. Any parties
interested in commenting must do so at this time.
V. 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.
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 tribal implications because it will 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).
This action also does not have Federalism implications because it does
not 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).
This action merely approves 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 rule
also is not subject to Executive Order 13045 ``Protection of Children
from Environmental Health Risks and Safety Risks'' (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. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
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 9, 2007.
Filing a petition for reconsideration by the Administrator of this
final rule to update the Virginia regulations to include counties and
local jurisdictions in the Northern Virginia PM2.5 nonattainment area
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 may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Particulate
matter,
[[Page 656]]
Reporting and recordkeeping requirements.
Dated: December 22, 2006.
Donald S. Welsh,
Regional Administrator, Region III.
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40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
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1. The authority citation for 40 CFR part 52 continues to read as
follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart VV--Virginia
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2. In Sec. 52.2420, the table in paragraph (c) is amended by revising
the entry for Chapter 20, Part II, Section 5-20-204 to read as follows:
Sec. 52.2420 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Virginia Regulations and Statutes
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State
State citation (9 Title/subject effective EPA approval date Explanation [former
VAC 5) date SIP citation]
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* * * * * * *
Chapter 20 General Provisions
* * * * * * *
Part II Air Quality Programs
* * * * * * *
5-20-204.............. Nonattainment Areas 5/4/05 1/8/07 [Insert page Paragraph 5-20-204A.3
number where the is added.
document begins]
* * * * * * *
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[FR Doc. E6-22552 Filed 1-5-07; 8:45 am]
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