[Federal Register: March 3, 2006 (Volume 71, Number 42)]
[Rules and Regulations]
[Page 10842-10844]
[DOCID:fr03mr06-7]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2005-VA-0016; FRL-8040-1]

Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Amendments to the Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving 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. EPA is approving this SIP revision in accordance with the
Clean Air Act (CAA or Act).

EFFECTIVE DATE: This final rule is effective on April 3, 2006.

ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2005-VA-0016. All documents in the docket are listed
in the http://www.regulations.gov website. 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: Rose Quinto,<PHONE_NUMBER>, or by e-
mail at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

    On January 6, 2006 (71 FR 892), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed
approval of the amendments to the Commonwealth's existing ambient air
quality standards, 9 VAC 5 Chapter 30. The formal SIP revision was
submitted by the Virginia Department of Environmental Quality (VADEQ)
on September 26, 2005.

II. Summary of SIP Revision

    The Commonwealth's SIP revision incorporates the 1997 national
ambient air quality standards (NAAQS) for the 8-hour ozone and
PM2.5 into the Virginia Regulations for the Control and
Abatement of Air Pollution: 9 VAC 5 Chapter 30, Ambient Air Quality
Standards. 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.
    Other specific requirements of Regulation 9 VAC 5 Chapter 30 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.

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. Final Action

    EPA is approving the amendments to the existing air quality
standards, 9 VAC 5 Chapter 30, as a revision to the Virginia SIP
submitted on September 26, 2005.

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 May 2, 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 pertaining to the amendments of Virginia's ambient air
quality standards, 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, Carbon monoxide, Nitrogen dioxide, Ozone,
Particulate matter, Sulfur oxides, Volatile organic compounds.

    Dated: February 22, 2006.
William Early,
Acting Regional Administrator, Region III.

0
40 CFR part 52 is 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 (c) is amended by revising
the entries for Chapter 30 to read as follows:

Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

                                 EPA-Approved Virginia Regulations and Statutes
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                                                                                Explanation
     State citation (9 VAC 5)         Title/subject          State       EPA approval date       [former SIP
                                                        effective date                            citation]
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                                                  * * * * * * *
                               Chapter 30 Ambient Air Quality Standards [Part III]
----------------------------------------------------------------------------------------------------------------
5-30-10..........................  General............          9/8/04  3/3/06 [Insert page  ...................
                                                                         number where the
                                                                         document begins].
5-30-30..........................  Sulfur oxides                9/8/04  3/3/06 [Insert page  ...................
                                    (sulfur dioxide).                    number where the
                                                                         document begins].
5-30-40..........................  Carbon Monoxide....          9/8/04  3/3/06 [Insert page  ...................
                                                                         number where the
                                                                         document begins].
5-30-50..........................  Ozone (1-hour).....          9/8/04  3/3/06 [Insert page  ...................
                                                                         number where the
                                                                         document begins].
5-30-55..........................  Ozone (8-hour).....          9/8/04  3/3/06 [Insert page  Added Section.
                                                                         number where the
                                                                         document begins].
5-30-60..........................  Particulate Matter           9/8/04  3/3/06 [Insert page  ...................
                                    (PM10).                              number where the
                                                                         document begins].
5-30-65..........................  Particulate Matter.          9/8/04  3/3/06 [Insert page  Added Section.
                                                                         number where the
                                                                         document begins].
5-30-70..........................  Nitrogen dioxide...          9/8/04  3/3/06 [Insert page  ...................
                                                                         number where the
                                                                         document begins].
5-30-80..........................  Lead...............          9/8/04  3/3/06 [Insert page  ...................
                                                                         number where the
                                                                         document begins].

                                                  * * * * * * *
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[FR Doc. 06-1944 Filed 3-2-06; 8:45 am]

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