

[Federal Register: November 2, 2005 (Volume 70, Number 211)]
[Proposed Rules]               
[Page 66316-66329]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02no05-31]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[R03-OAR-2005-VA-0007; FRL-7993-1]

 
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: Proposed rule.

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SUMMARY: EPA is proposing to approve 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 State Implementation Plan 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 proposing to make 
a determination that the Frdericksburg area has attained the 8-hour 
ozone NAAQS. This proposed determination is based on three years of 
complete, quality-assured ambient air quality monitoring data for 2002-
2004 that demonstrate the 8-hour NAAQS has been attained in the area. 
EPA's proposed approval of the 8-hour ozone redesignation request is 
based on its determination that the Fredericksburg area has met the 
criteria for redesignation to attainment specified in the Clean Air Act 
(CAA). EPA is providing information on the status of its 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 also proposing to 
approve those MVEBs. EPA is proposing approval of the

[[Page 66317]]

redesignation request and of the maintenance plan revision to the 
Virginia SIP in accordance with the requirements of the CAA.

DATES: Written comments must be received on or before December 2, 2005.

ADDRESSES: Submit your comments, identified by Regional Material in 
EDocket (RME) ID Number R03-OAR-2005-VA-0007 by one of the following 
methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 

on-line instructions for submitting comments.
    Agency Web site: http://docket.epa.gov/rmepub/ RME, EPA's 

electronic public docket and comment system, is EPA's preferred method 
for receiving comments. Follow the on-line instructions for submitting 
comments.
    E-mail: morris.makeba@epa.gov.
    Mail: R03-OAR-2005-VA-0007, Makeba Morris, Chief, Air Quality 
Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, 
Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
    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 RME ID No. R03-OAR-2005-VA-
0007. 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://docket.epa.gov/rmepub/, 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 RME, regulations.gov 
or e-mail. The EPA RME and the Federal regulations.gov Web sites are 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 RME or 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 
RME index at http://docket.epa.gov/rmepub/. 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 RME 
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: Amy Caprio, (215) 814-2156, or by e-
mail at caprio.amy@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we'' , 
``us'', or ``our'' is used, we mean EPA.

Table of Contents

I. What Actions Is EPA Proposing to Take?
II. What Is the Background for These Proposed Actions?
III. What Are the Criteria for Redesignation to Attainment?
IV. Why Is EPA Taking These Actions?
V. What Would be the Effect of These Actions?
VI. What Is EPA's Analysis of the Commonwealth's Request?
VII. Are the Motor Vehicle Emissions Budgets Established and 
Identified in the Maintenance Plan for the Fredericksburg Area 
Adequate and Approvable?
VIII. General Information Pertaining to SIP Submittals From the 
Commonwealth of Virginia
IX. Proposed Actions
X. Statutory and Executive Order Reviews

I. What Actions Is EPA Proposing to Take?

    On May 2, 2005, VADEQ formally submitted a request to redesignate 
the Fredericksburg area to attainment of the 8-hour NAAQS for ozone. On 
May 4, 2005, Virginia submitted a maintenance plan for the 
Fredericksburg area as a SIP revision, to ensure continued attainment 
over the next 10 years. The Fredericksburg area is composed of the City 
of Fredericksburg, Spotsylvania County, and Stafford County. It is 
currently designated as a moderate 8-hour ozone nonattainment area. EPA 
is proposing to determine that the Fredericksburg area has attained the 
8-hour ozone NAAQS and that it has met the requirements for 
redesignation pursuant to section 107(d)(3)(E) of the CAA. EPA is, 
therefore, proposing to approve the redesignation request to change the 
designation of the Fredericksburg area from nonattainment to attainment 
for the 8-hour ozone NAAQS. EPA is also proposing to approve the 
maintenance plan SIP revision for the area (such approval being one of 
the CAA requirements for approval of a redesignation request). The 
maintenance plan is designed to ensure continued attainment in the 
Fredericksburg area for the next 10 years. Additionally, EPA is 
announcing its action on the adequacy process for the MVEBs identified 
in the maintenance plan, and proposing to approve the MVEBs identified 
for volatile organic compounds (VOC) and nitrogen oxides 
(NOX) for the Fredericksburg area for transportation 
conformity purposes.

II. What Is the Background for These Proposed Actions?

A. General

    Ground-level ozone is not emitted directly by sources. Rather, 
emissions of NOX and VOC react in the presence of sunlight 
to form ground-level ozone. The air pollutants NOX and VOC 
are referred to as precursors of ozone. The CAA establishes a process 
for air quality management through the attainment and maintenance of 
the NAAQS.
    On July 18, 1997, EPA promulgated a revised 8-hour ozone standard 
of 0.08 parts per million (ppm). This new standard is more stringent 
than the previous 1-hour ozone standard. EPA designated, as 
nonattainment, any area violating the 8-hour ozone NAAQS based on the 
air quality data for the three years of 2001-2003. These were the most 
recent three years of data at the time EPA designated 8-hour areas. The 
Fredericksburg area was designated as moderate 8-hour ozone 
nonattainment status in a notice signed on April 25, 2004 and published 
on April 30, 2004 (69 FR 23857), based on its exceedance of the 8-hour 
health-based standard for ozone during the years of 2001-2003.
    The CAA, title I, part D, contains two sets of provisions--subpart 
1 and subpart 2--that address planning and control requirements for 
nonattainment areas. Subpart 1 (which EPA refers to as ``basic'' 
nonattainment) contains general, less prescriptive requirements for 
nonattainment areas for any pollutant--including ozone--governed

[[Page 66318]]

by a NAAQS. Subpart 2 (which EPA refers to as ``classified'' 
nonattainment) provides more specific requirements for ozone 
nonattainment areas. Some 8-hour ozone nonattainment areas are subject 
only to the provisions of subpart 1. Other areas are also subject to 
the provisions of subpart 2. Under EPA's 8-hour ozone implementation 
rule, signed on April 15, 2004, an area was classified under subpart 2 
based on its 8-hour ozone design value (i.e., the 3-year average annual 
fourth-highest daily maximum 8-hour average ozone concentration), if it 
had a 1-hour design value at or above 0.121 ppm (the lowest 1-hour 
design value in the CAA for subpart 2 requirements). All other areas 
are covered under subpart 1, based upon their 8-hour design values. In 
2004, the Fredericksburg area was designated a moderate 8-hour ozone 
nonattainment area based on air quality monitoring data from 2001-2003, 
and is subject to the requirements of both subparts 1 and 2.
    Under EPA regulations at 40 CFR part 50, the 8-hour ozone standard 
is attained when the 3-year average of the annual fourth-highest daily 
maximum 8-hour average ambient air quality ozone concentrations is less 
than or equal to 0.08 ppm (i.e., 0.084 ppm when rounding is 
considered). See 69 FR 23857 (April 30, 2004) for further information. 
Ambient air quality monitoring data for the 3-year period must meet 
data completeness requirements. The data completeness requirements are 
met when the average percent of days with valid ambient monitoring data 
is greater than 90 percent, and no single year has less than 75 percent 
data completeness as determined in Appendix I of 40 CFR part 50. In 
2004, the ambient ozone data for the Fredericksburg area indicated no 
further violations of the 8-hour ozone standard, using data from the 3-
year period of 2002-2004 with a design value of 0.084 ppm. Available 
preliminary monitoring data through September 30, 2005 indicates 
continued attainment of the 8-hour ozone standard.

B. The Fredericksburg Area

    The Fredericksburg 8-hour ozone nonattainment area consists of the 
City of Fredericksburg, Spotsylvania County, and Stafford County. Prior 
to designation as an 8-hour ozone nonattainment area, the City of 
Fredericksburg and Spotsylvania County were designated attainment for 
the 1-hour ozone NAAQS, as part of the North Eastern Virginia 
Intrastate (Air Quality Control Region 224) area. Stafford County, on 
the other hand, was part of the Metropolitan Washington, DC 1-hour 
ozone nonattainment area (the Washington area), and therefore was 
subject to requirements for both serious and severe 1-hour ozone 
nonattainment areas pursuant to sections 182(c) and 182(d) of the Clean 
Air Act.\1\
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    \1\ EPA reclassified the Washington area from serious 
nonattainment to severe nonattainment for the 1-hour ozone NAAQS on 
January 24, 2003. See 68 FR 3410 (January 24, 2003) for the 
reclassification and 56 FR 56694 (November 6, 1991) for the original 
classification.
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    On May 2, 2005, the Commonwealth of Virginia requested 
redesignation to attainment for the 8-hour ozone standard for the 
Fredericksburg area. The redesignation request included three years of 
complete, quality-assured data for the period of 2002-2004, indicating 
that the 8-hour NAAQS for ozone had been achieved for the 
Fredericksburg area. The data satisfies the CAA requirements when the 
3-year average of the annual fourth-highest daily maximum 8-hour 
average ozone concentration is less than or equal to 0.08 ppm. Under 
the CAA, a nonattainment area may be redesignated if sufficient 
complete, quality-assured data is available to determine that the area 
has attained the standard and the area meets the other CAA 
redesignation requirements set forth in section 107(d)(3)(E).

C. Prior Proposed Rulemaking Actions

    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 
and stated that EPA would re-propose approval of the redesignation of 
the Fredericksburg area and the associated maintenance plan, and 
provide an expanded discussion as to why the redesignation request for 
this area is approvable under the CAA. In this notice of proposed 
rulemaking, EPA is re-proposing approval of the redesignation of the 
Fredericksburg area and the associated maintenance plan as announced in 
the September 30, 2005 withdrawal notice.

III. What Are the Criteria for Redesignation to Attainment?

    The CAA provides the requirements for redesignating a nonattainment 
area to attainment. Specifically, section 107(d)(3)(E) of the CAA, 
allows for redesignation, providing that:
    (1) EPA determines that the area has attained the applicable NAAQS;
    (2) EPA has fully approved the applicable implementation plan for 
the area under section 110(k);
    (3) EPA determines that the improvement in air quality is due to 
permanent and enforceable reductions in emissions resulting from 
implementation of the applicable SIP and applicable Federal air 
pollutant control regulations and other permanent and enforceable 
reductions;
    (4) EPA has fully approved a maintenance plan for the area as 
meeting the requirements of section 175A; and
    (5) The state containing such area has met all requirements 
applicable to the area under section 110 and part D.
    EPA provided guidance on redesignation in the General Preamble for 
the Implementation of Title I of the CAA Amendments of 1990, on April 
16, 1992 (57 FR 13498), and supplemented this guidance on April 28, 
1992 (57 FR 18070). EPA has provided further guidance on processing 
redesignation requests in the following documents:
     ``Ozone and Carbon Monoxide Design Value Calculations'', 
Memorandum from Bill Laxton, June 18, 1990;
     ``Maintenance Plans for Redesignation of Ozone and Carbon 
Monoxide Nonattainment Areas,'' Memorandum from G.T. Helms, Chief, 
Ozone/Carbon Monoxide Programs Branch, April 30, 1992;
     ``Contingency Measures for Ozone and Carbon Monoxide (CO) 
Redesignations,'' Memorandum from G. T. Helms, Chief, Ozone/Carbon 
Monoxide Programs Branch, June 1, 1992;
     ``Procedures for Processing Requests to Redesignate Areas 
to Attainment,'' Memorandum from John Calcagni, Director, Air Quality 
Management Division, September 4, 1992;
     ``State Implementation Plan (SIP) Actions Submitted in 
Response to Clean Air Act (Act) Deadlines,'' Memorandum from John 
Calcagni, Director, Air Quality Management Division, October 28, 1992;
     ``Technical Support Documents (TSD's) for Redesignation 
Ozone and Carbon Monoxide (CO) Nonattainment Areas,'' Memorandum from 
G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 
1993;
     ``State Implementation Plan (SIP) Requirements for Areas 
Submitting Requests for Redesignation to Attainment of the Ozone and 
Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) On 
or After November 15, 1992,'' Memorandum from Michael H. Shapiro, 
Acting

[[Page 66319]]

Assistant Administrator for Air and Radiation, September 17, 1993;
     Memorandum from D. Kent Berry, Acting Director, Air 
Quality Management Division, to Air Division Directors, Regions 1-10, 
``Use of Actual Emissions in Maintenance Demonstrations for Ozone and 
CO Nonattainment Areas,'' dated November 30, 1993;
     ``Part D New Source Review (part D NSR) Requirements for 
Areas Requesting Redesignation to Attainment,'' Memorandum from Mary D. 
Nichols, Assistant Administrator for Air and Radiation, October 14, 
1994; and
     ``Reasonable Further Progress, Attainment Demonstration, 
and Related Requirements for Ozone Nonattainment Areas Meeting the 
Ozone National Ambient Air Quality Standard,'' Memorandum from John S. 
Seitz, Director, Office of Air Quality Planning and Standards, May 10, 
1995.
    Relevant rulemakings also include EPA's Final Rule to Implement the 
8-Hour Ozone NAAQS--Phase 1 and the Notice of Reconsideration thereof. 
See 69 FR 23951 (April 30, 2004) and 70 FR 30592, 30604 (May 26, 2005).

IV. Why Is EPA Taking These Actions?

    On May 2, 2005, the VADEQ requested redesignation of the 
Fredericksburg area to attainment for the 8-hour ozone standard. On May 
4, 2005, the VADEQ submitted a maintenance plan for the Fredericksburg 
area as a SIP revision, to assure continued attainment over the next 10 
years. EPA has determined that the Fredericksburg area has attained the 
standard and has met the requirements for redesignation set forth in 
section 107(d)(3)(E).

V. What Would Be the Effect of These Actions?

    Approval of the redesignation request would change the designation 
of the Fredericksburg area from nonattainment to attainment for the 8-
hour ozone NAAQS found at 40 CFR part 81. It would also incorporate 
into the Virginia SIP a maintenance plan ensuring continued attainment 
of the 8-hour ozone NAAQS in the Fredericksburg area for the next 10 
years. The maintenance plan includes contingency measures to remedy any 
future violations of the 8-hour NAAQS (should they occur), and 
identifies the NOX and VOC MVEBs for transportation 
conformity purposes for the years 2004, 2009 and 2015. These MVEBs are 
displayed in the following table:

     Table 1.--Motor Vehicle Emissions Budgets in Tons per Day (tpd)
------------------------------------------------------------------------
                        Year                             NOX       VOC
------------------------------------------------------------------------
2004................................................    19.742    11.298
2009................................................    13.062     8.346
2015................................................     7.576     7.334
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VI. What Is EPA's Analysis of the Commonwealth's Request?

    EPA is proposing to determine that the Fredericksburg area has 
attained the 8-hour ozone standard and that all other redesignation 
criteria have been met. The following is a description of how the 
VADEQ's May 2, 2005 and May 4, 2005 submittals satisfy the requirements 
of section 107(d)(3)(E) of the CAA.

A. The Fredericksburg Area Has Attained the 8-Hour Ozone NAAQS

    EPA is proposing to determine that the Fredericksburg area has 
attained the 8-hour ozone NAAQS. For ozone, an area may be considered 
to be attaining the 8-hour ozone NAAQS if there are no violations, as 
determined in accordance with 40 CFR 50.10 and Appendix I of Part 50, 
based on three complete, consecutive calendar years of quality-assured 
air quality monitoring data. To attain this standard, the 3-year 
average of the fourth-highest daily maximum 8-hour average ozone 
concentrations measured at each monitor within the area over each year 
must not exceed the ozone standard of 0.08 ppm. Based on the rounding 
convention described in 40 CFR part 50, Appendix I, the standard is 
attained if the design value is 0.084 ppm or below. The data must be 
collected and quality-assured in accordance with 40 CFR part 58, and 
recorded in Aerometric Information Retrieval System (AIRS). The 
monitors generally should have remained at the same location for the 
duration of the monitoring period required for demonstrating 
attainment.
    In the Fredericksburg area, there is one ozone monitor, located in 
Stafford County, that measures air quality with respect to ozone. As 
part of its redesignation request, Virginia submitted ozone monitoring 
data for the years 2002-2004 (the most recent three years of data 
available as of the time of the redesignation request). This data has 
been quality assured and is recorded in AIRS. The fourth high 8-hour 
daily maximum concentrations, along with the three-year average, are 
summarized in Table 2.

   Table 2.--Fredericksburg Area Fourth Highest 8-Hour Average Values
           Stafford County Station No. 44-1, AIRS ID 511790001
------------------------------------------------------------------------
                                                            Annual 4th
                          Year                             high reading
                                                               (ppm)
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2002....................................................           0.094
2003....................................................           0.085
2004....................................................           0.073
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    The average for the 3-year period 2002 through 2004 is 0.084 ppm.
------------------------------------------------------------------------

    The data for 2002-2004 show that the area has attained the 
standard, and preliminary data for the 2005 ozone season show that the 
area continues to attain the standard. The data collected at the 
Stafford County monitor satisfies the CAA requirement that the three-
year average of the annual fourth-highest daily maximum 8-hour average 
ozone concentration is less than or equal to 0.08 parts per million 
(ppm). The VADEQ's request for redesignation for the Fredericksburg 
area indicates that the data was quality assured in accordance with 40 
CFR part 58. The VADEQ uses AIRS as the database to maintain its data 
and quality assures the data transfers and content for accuracy. In 
addition, as discussed below with respect to the maintenance plan, 
Virginia has committed to continue monitoring in accordance with 40 CFR 
part 58. In summary, EPA has determined that the data submitted by 
Virginia indicates that the area has attained the 8-hour ozone NAAQS.

B. The Fredericksburg Area Has Met All Applicable Requirements Under 
Section 110 and Part D of the CAA and the Area Has a Fully Approved SIP 
Under Section 110(k) of the CAA

    EPA has determined that Virginia has met all SIP requirements for 
the Fredericksburg area applicable for purposes of redesignation under 
Section 110 of the CAA (General SIP Requirements) and that it meets all 
applicable SIP requirements under Part D of Title 1 of the CAA, in 
accordance with Section 107(d)(3)(E)(v). In addition, EPA has 
determined that the SIP is fully approved with respect to all 
requirements applicable for purposes of redesignation in accordance 
with section 107(d)(3)(E)(ii). In making these proposed determinations, 
EPA ascertained what requirements are applicable to the area, and 
determined that the applicable portions of the SIP meeting these 
requirements are fully approved under section 110(k) of the

[[Page 66320]]

CAA. We note that SIPs must be fully approved only with respect to 
applicable requirements. The September 4, 1992 Calcagni memorandum 
(``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' Memorandum from John Calcagni, Director, Air Quality 
Management Division, September 4, 1992) describes EPA's interpretation 
of section 107(d)(3)(E) with respect to the timing of applicable 
requirements. Under this interpretation, to qualify for redesignation, 
states requesting redesignation to attainment must meet only the 
relevant CAA requirements that come due prior to the submittal of a 
complete redesignation request. See also Michael Shapiro memorandum, 
September 17, 1993, and 60 FR 12459, 12465-66 (March 7, 1995) 
(redesignation of Detroit-Ann Arbor). Applicable requirements of the 
CAA that come due subsequent to the area's submittal of a complete 
redesignation request remain applicable until a redesignation is 
approved, but are not required as a prerequisite to redesignation. 
Section 175A(c) of the CAA. Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 
2004). See also 68 FR 25424, 25427 (May 12, 2003) (redesignation of St. 
Louis).
1. Section 110 General SIP Requirements
    Section 110(a)(2) of Title I of the CAA delineates the general 
requirements for a SIP, which include enforceable emissions limitations 
and other control measures, means, or techniques, provisions for the 
establishment and operation of appropriate devices necessary to collect 
data on ambient air quality, and programs to enforce the limitations. 
The general SIP elements and requirements set forth in section 
110(a)(2) include, but are not limited to, the following:
     Submittal of a SIP that has been adopted by the state 
after reasonable public notice and hearing;
     Provisions for establishment and operation of appropriate 
procedures needed to monitor ambient air quality;
     Implementation of a source permit program; provisions for 
the implementation of Part C requirement (Prevention of Significant 
Deterioration (PSD));
     Provisions for the implementation of Part D requirements 
for New Source Review (NSR) permit programs;
     Provisions for air pollution modeling; and
     Provisions for public and local agency participation in 
planning and emission control rule development.
    Section 110(a)(2)(D) requires that SIPs contain certain measures to 
prevent sources in a state from significantly contributing to air 
quality problems in another state. To implement this provision, EPA has 
required certain states to establish programs to address transport of 
air pollutants in accordance with the NOX SIP Call, October 
27, 1998 (63 FR 57356), amendments to the NOX SIP Call, May 
14, 1999 (64 FR 26298) and March 2, 2000 (65 FR 11222), and the Clean 
Air Interstate Rule (CAIR), May 12, 2005 (70 FR 25161). However, the 
section 110(a)(2)(D) requirements for a state are not linked with a 
particular nonattainment area's designation and classification in that 
state. EPA believes that the requirements linked with a particular 
nonattainment area's designation and classification are the relevant 
measures to evaluate in reviewing a redesignation request. The 
transport SIP submittal requirements, where applicable, continue to 
apply to a state regardless of the designation of any one particular 
area in the state.
    Thus, we do not believe that these requirements should be construed 
to be applicable requirements for purposes of redesignation. In 
addition, EPA believes that the other section 110 elements not 
connected with nonattainment plan submissions and not linked with an 
area's attainment status are not applicable requirements for purposes 
of redesignation. The Commonwealth will still be subject to these 
requirements after the Fredericksburg area is redesignated. The section 
110 and Part D requirements, which are linked with a particular area's 
designation and classification, are the relevant measures to evaluate 
in reviewing a redesignation request. This policy is consistent with 
EPA's existing policy on applicability of conformity (i.e., for 
redesignations) and oxygenated fuels requirements, as well as with the 
policy on the applicability of section 184 ozone transport 
requirements. See Reading, Pennsylvania, proposed and final rulemakings 
61 FR 53174-53176 (October 10, 1996), (62 FR 24816, May 7, 1997); 
Cleveland-Akron-Lorain, Ohio, final rulemaking (61 FR 20458, May 7, 
1996); and Tampa, Florida, final rulemaking at 60 FR 62748, (December 
7, 1995). See also the discussion on this issue in the Cincinnati 
redesignation (65 FR 37890, June 19, 2000), and in the Pittsburgh 
redesignation (66 FR 50399, October 19, 2001). Similarly, with respect 
to the NOX SIP Call rules, EPA noted in its Phase 1 Final 
Rule to Implement the 8-hour Ozone NAAQS, that the NOX SIP 
Call rules are not ``an `applicable requirement' for purposes of 
section 110(l) because the NOX rules apply regardless of an 
area's attainment or nonattainment status for the 8-hour (or the 1-
hour) NAAQS.'' 69 FR 23951, 23983 (April 30, 2004).
    EPA believes that section 110 elements not linked to the area's 
nonattainment status are not applicable for purposes of redesignation. 
Any section 110 requirements that are linked to the Part D requirements 
for 8-hour ozone nonattainment areas are not yet due, because, as 
explained below, no Part D requirements applicable for purposes of 
redesignation under the 8-hour standard became due prior to submission 
of the redesignation request. Therefore EPA concludes that Virginia has 
satisfied the criterion of section 107(d)(3)(E) regarding section 110 
of the Act.
2. Part D Nonattainment Area Requirements Under the 1-Hour Standard and 
EPA's Anti-Backsliding Rules
    Stafford County is the only locality in the Fredericksburg area 
that was subject to ozone requirements for 1-hour ozone nonattainment 
areas. As noted previously, prior to its designation as an 8-hour ozone 
nonattainment area, Stafford County was a part of the Metropolitan 
Washington, DC 1-hour ozone nonattainment area, and therefore, subject 
to SIP requirements for serious and severe ozone nonattainment areas 
pursuant to sections 182 (c) and (d) of the CAA. While, on June 15, 
2005, the 1-hour standard was revoked, 40 CFR 50.9(b), under EPA's 
anti-backsliding rules, areas designated nonattainment for the 1-hour 
standard at the time of the 8-hour ozone designations remained subject 
to certain control measures that applied by virtue of the area's 
classification for the 1-hour ozone NAAQS. (40 CFR 51.900 et seq., see 
also 70 FR 30592, 30604, May 26, 2005). The applicable Part D 1-hour 
ozone standard requirements for purposes of redesignation are those 
that continue to apply under EPA's anti-backsliding rules, which were 
promulgated in conjunction with the implementation of the 8-hour NAAQS. 
(40 CFR 51.900 et seq., as amended 70 FR 30592, 30604 (May 26, 2005)).
    EPA's 8-hour NAAQS implementation rule in 40 CFR 51.905(a)(1) 
prescribes the 1-hour NAAQS requirements that continue to apply after 
revocation of the 1-hour NAAQS to former 1-hour ozone nonattainment 
areas, such as Stafford County. Section 51.905(a)(1)(i) provides that:

    The area remains subject to the obligation to adopt and 
implement the applicable

[[Page 66321]]

requirements as defined in section 51.900(f), except as provided in 
paragraph (a)(1)(iii) of this section, and except as provided in 
paragraph (b) of this section. * * *

    Section 51.900(f), as amended by 70 FR 30592, 30604 (May 26, 2005), 
states that:

    Applicable requirements means for an area the following 
requirements to the extent such requirements apply or applied to the 
area for the area's classification under section 181(a)(1) of the 
CAA for the 1-hour NAAQS at designation for the 8-hour NAAQS:
    (1) Reasonably available control technology (RACT).
    (2) Inspetion and maintenance programs (I/M).
    (3) Major source applicability cut-offs for purposes of RACT.
    (4) Rate of Progress (ROP) reductions.
    (5) Stage II vapor recovery.
    (6) Clean fuels fleet program under section 183(c)(4) of the 
CAA.
    (7) Clean fuels for boilers under section 182(e)(3) of the CAA.
    (8) Transportation Control Measures (TCMs) during heavy traffic 
hours as provided under section 182(e)(4) of the CAA.
    (9) Enhanced (ambient) monitoring under section 182(c)(1) of the 
CAA.
    (10) Transportation control measures (TCMs) under section 
182(c)(5) of the CAA.
    (11) Vehicle miles traveled (VMT) provisions of section 
182(d)(1) of the CAA.
    (12) NOX requirements under section 182(f) of the 
CAA.
    (13) Attainment demonstration or an alternative as provided 
under section 51.905(a)(1)(ii).

    Pursuant to 40 CFR 51.905(c), only the Stafford County portion of 
the Fredericksburg area is subject to the obligations set forth in 
51.905(a) and 51.900(f). At the time Stafford County was designated 
nonattainment for the 8-hour standard, it was part of a 1-hour 
nonattainment area classified as severe. Therefore, two of the 
elements--clean fuels for boilers under section 182(e)(3) and TCMs 
during heavy traffic hours as provided under section 182(e) are not 
applicable requirements for the Stafford County portion of the 
Fredericksburg area. The following paragraphs discuss how the 
applicable requirements have been met.
    With respect to RACT and the major source applicability cut-offs 
for purposes of RACT, EPA has fully approved Virginia's SIP for the 
Washington 1-hour ozone nonattainment area as meeting the requirements 
of sections 182(b)(2), 182(c) and 182(f) of the CAA. On March 12, 1997 
(62 FR 11332), EPA fully approved Virginia's VOC RACT regulation SIP 
revision for control technique guideline (CTG) sources and for non-CTG 
sources which have an applicability threshold of 25 tons per year (tpy) 
or more. On January 2, 2001 (66 FR 8), EPA fully approved Virginia's 
NOX RACT regulation SIP revision which had a major source 
applicability threshold of 50 tpy or more. On August 9, 2004 (69 FR 
48150), EPA fully approved Virginia's SIP revision that lowered the 
major source applicability threshold for its NOX RACT (and 
Part D NSR) regulations to 25 tpy. EPA has fully approved Virginia's 
SIP revisions consisting of source category and individual source RACT 
determinations.\2\ See 62 FR 11332 (March 12, 1997); 62 FR 11334 (March 
12, 1997); 64 FR 3425 (January 22, 1999); 66 FR 8 (January 2, 2001); 69 
FR 48150 (August 9, 2004); 69 FR 54578 (September 9, 2004); 69 FR 54600 
(September 9, 2004); 69 FR 59812 (October 6, 2004); and, 69 FR 72115 
(December 13, 2004).
---------------------------------------------------------------------------

    \2\ Certain sources located in Stafford County applied for and 
received Federally Enforceable State Operating Permits (FESOPs) from 
VADEQ which limited their emissions of VOC and NOX below 
the RACT applicability thresholds. After redesignation, those FESOPs 
will remain applicable requirements of the Virginia SIP.
---------------------------------------------------------------------------

    On September 1, 1999 (64 FR 47670), EPA fully approved Virginia's 
I/M program to meet the enhanced program required in the Washington 1-
hour ozone nonattainment area under section 182(c)(3) of the CAA.
    EPA has fully approved Virginia's SIP revisions that demonstrate 
ROP reductions required in the Washington 1-hour ozone nonattainment 
area. On October 6, 2000 (65 FR 59727), EPA approved Virginia's plan to 
achieve the 15 percent reduction in VOC emissions in the Washington 
area that was required under section 182(b) of the CAA. On May 13, 2005 
(70 FR 25688), EPA fully approved Virginia's ROP plan to achieve 
further ROP reductions in the Washington, area by 1999, 2002 and 2005 
that were required of serious and severe 1-hour ozone nonattainment 
areas under section 182(c)(2) of the CAA.
    On June 23, 1994 (59 FR 32353), EPA approved Virginia's Stage II 
vapor recovery program required in the Washington 1-hour ozone 
nonattainment area under section 182(b)(2) of the CAA.
    On December 28, 1999 (64 FR 72564), EPA fully approved Virginia's 
SIP revision which substituted a national low emission vehicle (NLEV) 
program for the clean fuel fleet program required in the Washington 1-
hour ozone nonattainment area under section 182(c)(4) of the CAA.
    On September 11, 1995, (60 FR 47081), EPA fully approved Virginia's 
SIP revision consisting of an enhanced ambient monitoring program 
required in the Washington 1-hour ozone nonattainment area under 
section 182(c)(1) of the CAA.
    Within six years of November 15, 1990, and every three years 
thereafter, section 182(c)(5) requires States to submit a demonstration 
of whether current aggregate vehicle mileage, aggregate vehicle 
emissions, congestion levels, and other relevant parameters 
(collectively ``relevant parameters'') are consistent with those used 
for the area's demonstration of attainment for serious and above 1-hour 
ozone nonattainment areas. If the levels of relevant parameters that 
are projected in the attainment demonstration are exceeded, a State has 
18 months to develop and submit a revision of the applicable 
implementation plan to include TCMs to reduce emissions to a level 
consistent with emissions levels in the attainment demonstration for 
the area.
    Alternatively, EPA has determined that nonattainment areas are not 
permanently locked into the estimates of future emissions given in the 
initial SIP submittal, nor locked into those in any subsequently 
approved amendment thereto. As we stated in the General Preamble, once 
approved, the amended SIP revision would have the effect of increasing 
the allowable motor vehicle emissions (including those due to changes 
in the relevant parameters). See 57 FR 13498 at 13520 (April 16, 1992). 
Thus if actual emissions exceed those projected in an area's attainment 
demonstration, a State may at any time before the area reaches 
attainment, amend the area's SIP to demonstrate attainment while 
altering the mix of emissions reductions in its SIP from various kinds 
of sources (motor vehicle versus non-motor vehicle), rather than 
include TCMs in the SIP.
    On August 19, 2003, Virginia submitted a SIP revision consisting of 
a demonstration that the Washington 1-hour ozone nonattainment area 
would attain the 1-hour ozone NAAQS by November 15, 2005. See 70 FR 
25688 (May 13, 2005). This SIP revision contained information on the 
relevant parameters current as of June 2003. On February 25, 2004, 
Virginia submitted as a SIP revision a revised attainment demonstration 
and plan for the Washington 1-hour ozone nonattainment area which also 
showed that the Washington 1-hour ozone nonattainment area would attain 
the 1-hour ozone NAAQS by November 15, 2005. See 70 FR 25688 (May 13, 
2005). That February 25, 2004 SIP revision contained information on the 
relevant parameters current as of November 23, 2003. On May 13, 2005 
(70 FR 25688), EPA fully approved Virginia's February

[[Page 66322]]

25, 2004 attainment demonstration and plan SIP revision for the 
Washington 1-hour ozone nonattainment. In the February 25, 2004 SIP 
revision, the relevant parameters remained consistent with the 
demonstration of attainment by relying on a mix of emissions reductions 
from motor vehicle and non-motor vehicle emission reduction without 
need to resort to TCMs.
    EPA therefore concludes that Virginia has complied with the 
substance of section 182(c)(5), has no currently due 182(c)(5) 
obligations, and by virtue of EPA's approval of the February 25, 2004 
attainment demonstration and plan SIP revision, has never triggered an 
obligation under 182(c)(5) to include TCMs in its SIP for the 
Washington 1-hour ozone area. Additionally, in line with EPA's guidance 
and policy regarding what is an applicable Part D requirement under 
section 107 of the CAA that was discussed previously in this document, 
EPA believes that any future activities, which may be required under 
section 182(c)(5), e.g., the next or subsequent triennial demonstration 
of the relevant parameters, for the former Washington 1-hour ozone 
nonattainment area did not come due before Virginia submitted its 
redesignation request and therefore are not applicable Part D 
requirements with respect to the approval of Virginia's request to 
redesignate the Fredericksburg area to attainment of the 8-hour ozone 
NAAQS.
    On May 13, 2005 (70 FR 25688), EPA fully approved Virginia's SIP 
revision for the Washington 1-hour ozone nonattainment area that 
implemented the VMT provisions of section 182(d)(1) of the CAA.
    With respect to NOX requirements under section 182(f) of 
the CAA, as discussed above, EPA has fully approved Virginia's SIP 
revision implementing the NOX RACT requirements in the 
Washington 1-hour ozone nonattainment area. For the Stafford County 
portion of the Fredericksburg area, EPA has fully approved, pursuant to 
section 110(k), Virginia's Part D NSR program that meets the 
requirements for a severe ozone nonattainment area set under Part D of 
Title I of the CAA. The Virginia Part D NSR program covers major 
sources of NOX as well as VOC. See 64 FR 51047 (September 
21, 1999); 65 FR 21315 (April 21, 2000); and, 69 FR 48150 (August 9, 
2004).
    On August 9, 2004 (69 FR 48150), EPA fully approved Virginia's SIP 
revision that lowered the major source applicability threshold for its 
NOX RACT (and Part D NSR) regulations to 25 tpy.
    On May 13, 2005 (70 FR 25688), EPA fully approved Virginia's 1-hour 
ozone attainment demonstration SIP revision for the Washington 1-hour 
ozone nonattainment area.
    In its May 2, 2005 redesignation request, Virginia identified 
certain SIP revisions as pending before EPA. As explained previously, 
EPA has since approved all those SIP revisions which are applicable 
Part D requirements. The remainder of these SIP revisions are not 
needed to fulfill an applicable Part D requirement for the 
Fredericksburg area. These other non-Part D SIP revisions propose to 
amend the Virginia SIP. EPA will approve these SIP revisions only if 
they meet the applicable requirements of the CAA and EPA's regulations, 
including but not limited to EPA's rules for the transition from the 1-
hour to the 8-hour NAAQS under 40 CFR part 51, subpart X.
    Thus EPA believes that Virginia has met all applicable Part D 
requirements under the 1-hour standard for purposes of redesignation 
under the 8-hour standard.
3. Part D Nonattainment Area Requirements Under the 8-Hour Standard
    The Fredericksburg area was designated a moderate nonattainment 
area for the 8-hour ozone standard. Sections 172-176 of the CAA, found 
in subpart 1 of Part D, set forth the basic nonattainment requirements 
for all nonattainment areas. Section 182 of the CAA, found in subpart 2 
of Part D, establishes additional specific requirements depending on 
the area's nonattainment classification. For a moderate nonattainment 
area for the 8-hour ozone standard, such as the Fredericksburg area, 
section 182(b) sets forth requirements. Section 184 also sets forth 
additional requirements for Stafford County, due to its location within 
the Ozone Transport Region (OTR). With respect to the 8-hour standard, 
EPA proposes to determine that the Virginia SIP meets all applicable 
SIP requirements under Part D of the CAA, because no 8-hour ozone 
standard Part D requirements applicable for purposes of redesignation 
became due prior to submission of the area's redesignation request.
    In addition to the fact that Part D requirements applicable for 
purposes of redesignation did not become due prior to submission of the 
redesignation request, EPA believes it is reasonable to interpret the 
conformity, NSR, and OTR requirements as not requiring approval prior 
to redesignation.
    Section 176(c) of the CAA requires states to establish criteria and 
procedures to ensure that Federally supported or funded projects 
conform to the air quality planning goals in the applicable SIP. The 
requirement to determine conformity applies to transportation plans, 
programs, and projects developed, funded or approved under Title 23 
U.S.C. and the Federal Transit Act (``transportation conformity'') as 
well as to all other Federally supported or funded projects (``general 
conformity''). State conformity revisions must be consistent with 
Federal conformity regulations relating to consultation, enforcement 
and enforceability that the CAA required the EPA to promulgate.
    EPA believes it is reasonable to interpret the conformity SIP 
requirements as not applying for purposes of evaluating the 
redesignation request under section 107(d) because state conformity 
rules are still required after redesignation and Federal conformity 
rules apply where state rules have not been approved. See Wall v. EPA, 
265 F. 3d 426, 438-440 (6th Cir. 2001), upholding this interpretation. 
See also 60 FR 62748 (Dec. 7, 1995, Tampa FL).
    EPA has also determined that areas being redesignated need not 
comply with the requirement that a NSR program be approved prior to 
redesignation, provided that the area demonstrates maintenance of the 
standard without Part D NSR in effect, since PSD requirements will 
apply after redesignation. The rationale for this view is described in 
a memorandum from Mary Nichols, Assistant Administrator for Air and 
Radiation, dated October 14, 1994, entitled, ``Part D NSR Requirements 
or Areas Requesting Redesignation to Attainment.'' Virginia has 
demonstrated that the area will be able to maintain the standard 
without Part D NSR in effect in the City of Fredericksburg and 
Spotsylvania County, and therefore, Virginia need not have a fully 
approved Part D NSR program prior to approval of the redesignation 
request. Virginia's PSD program will become effective in the area upon 
redesignation to attainment in the City of Fredericksburg and 
Spotsylvania County. See rulemakings for Detroit, MI (60 FR 12467-
12468, March 7, 1995); Cleveland-Akron-Lorrain, OH (61 FR 20458, 20469-
70, May 7, 1996); Louisville, KY (66 FR 53665, October 23, 2001); Grand 
Rapids, Michigan (61 FR 31834-31837, June 21, 1996).
    As to Stafford County, which is located in the OTR, nonattainment 
NSR requirements will continue to be applicable. EPA has also 
interpreted the section 184 OTR requirements,

[[Page 66323]]

including NSR, as not being applicable for purposes of redesignation. 
The rationale for this is based on two factors. First, the requirement 
to submit SIP revisions for the section 184 requirements continues to 
apply to areas in the OTR after redesignation to attainment. Therefore 
the Commonwealth remains obligated to have NSR, as well as RACT, and 
Vehicle I/M programs in Stafford County even after redesignation. 
Second, the section 184 control measures are region-wide requirements 
and do not apply to the area by virtue of its designation and 
classification. See 61 FR 53174, 53175-53176 (October 10, 1996) and 62 
FR 24826, 24830-32 (May 7, 1997).
    In any event, as discussed previously, EPA has fully approved 
Virginia's RACT, I/M and Part D nonattainment NSR SIP revisions for the 
Stafford County, the only part of the Fredericksburg area inside the 
OTR. Also, as noted previously, Virginia's approved RACT SIP sets the 
major source applicability thresholds for both VOC and NOX 
at 25 tpy which are well below the 50 and 100 tpy applicability 
thresholds required in the OTR for VOC sources and NOX 
sources, respectively.
    EPA also notes that for the Stafford County portion of the 
Fredericksburg area EPA has fully approved under section 110(k) 
Virginia's nonattainment NSR program that met the requirements for a 
severe 1-hour ozone nonattainment area. See 65 FR 21315 (April 21, 
2000) as amended by 64 FR 51047 (September 21, 1999) (recodification) 
and by 69 FR 32928, June 14, 2004. Consequently Stafford County's 
approved NSR program satisfies the NSR requirements applicable in the 
OTR. Thus, EPA proposes to find that the Fredericksburg area has 
satisfied all 8-hour ozone standard requirements applicable for 
purposes of section 107(d)(3)(E) under Part D of the CAA.
4. The Area Has a Fully Approved Applicable SIP Under Section 110(k) of 
the CAA
    EPA has fully approved the applicable Virginia SIP for the area 
under section 110(k) of the Clean Air Act. EPA may rely on prior SIP 
approvals in approving a redesignation request. Calcagni Memo, p. 3; 
Southwestern Pennsylvania Growth Alliance v. Browner, 144 F. 3d 984, 
989-90 (6th Cir. 1998), Wall v. EPA, 265 F.3d 426 (6th Cir. 2001) plus 
any additional measures it may approve in conjunction with a 
redesignation action. See 68 FR 25425 (May 12, 2003) and citations 
therein. Virginia has adopted and submitted and EPA has fully approved 
at various times provisions addressing the various 1-hour ozone 
standard SIP elements applicable for purposes of redesignation, in the 
Stafford portion of the Fredericksburg area. As indicated above, EPA 
believes that the section 110 elements not connected with nonattainment 
plan submissions and not linked to the area's nonattainment status are 
not applicable requirements for purposes of redesignation. EPA also 
believes that no 8-hour Part D requirements applicable for purposes of 
redesignation have yet become due, and therefore they need not be 
approved into the SIP prior to redesignation.

C. The Air Quality Improvement in the Fredericksburg Area Is Due to 
Permanent and Enforceable Reductions in Emissions Resulting From 
Implementation of the SIP and Applicable Federal Air Pollution Control 
Regulations and Other Permanent and Enforceable Reductions

    EPA believes that the Commonwealth has demonstrated that the 
observed air quality improvement in the area is due to permanent and 
enforceable reductions in emissions resulting from implementation of 
the SIP, Federal measures, and other state-adopted measures. EPA 
approved Virginia's SIP control strategy for the Fredericksburg area, 
including enforceable rules and the emissions reductions achieved as a 
result of those rules. Emissions reductions attributable to these rules 
are shown in Table 3.

                          Table 3.--Total VOC and NOX Emissions for 2002 and 2004 (tpd)
----------------------------------------------------------------------------------------------------------------
                      Year                          Point        Area*       Nonroad       Mobile       Total
----------------------------------------------------------------------------------------------------------------
                                        Volatile Organic Compounds (VOC)
----------------------------------------------------------------------------------------------------------------
Year 2002......................................        0.563       13.487        3.545       13.054       30.649
Year 2004......................................        0.602       14.070        3.304       11.298       29.274
Diff. (02-04)..................................        0.039        0.583       -0.241       -1.756       -1.375
------------------------------------------------
                                              Nitrogen Oxides (NOX)
----------------------------------------------------------------------------------------------------------------
Year 2002......................................        0.178        3.258        3.717       22.498       29.651
Year 2004......................................        0.179        3.465        3.601       19.742       26.987
Diff. (02-04)..................................        0.001        0.207       -0.116       -2.756      -2.664
----------------------------------------------------------------------------------------------------------------
* Area source category includes emissions from motor vehicle refueling.

    Between 2002 and 2004, VOC emissions were reduced by 1.4 tpd, and 
NOX emissions were reduced by 2.7 tpd, due to the following 
permanent and enforceable measures implemented or in the process of 
being implemented in the Fredericksburg area:
Programs Currently in Effect
    (a) National Low Emission Vehicle (NLEV);
    (b) Open burning restrictions for Stafford County only;
    (c) CTG RACT requirements for Stafford County only;
    (d) Non-CTG RACT requirements for Stafford County only;
    (e) Stage I and Stage II vapor recovery requirements for Stafford 
County only;
    (f) Reformulated gasoline (RFG) requirements for Stafford County 
only;
    (g) Area source VOC regulations concerning portable fuel 
containers; mobile vehicle refinishing; architectural and industrial 
maintenance coatings; solvent cleaning; and, consumer products for 
Stafford County only;
    (h) Motor vehicle fleet turnover with new vehicles meeting the Tier 
2 standards; and,
    (i) Low-sulfur gasoline.
    Virginia has demonstrated that the implementation of permanent 
enforceable emissions controls have reduced local VOC and 
NOX emissions. Nearly all of these reductions are 
attributable to mobile source emission controls such as NLEV and Tier I 
programs. Additionally, Virginia has indicated in its submittal that 
the NOX SIP Call took effect in 2004. While there are no 
subject sources currently located in the City of Fredericksburg, 
Stafford County or Spotsylvania County, Virginia expects to indirectly 
benefit in terms of

[[Page 66324]]

improved air quality due to this program. EPA believes that permanent 
and enforceable emissions reductions are the cause of the long-term 
improvement in ozone levels and are the cause of the area achieving 
attainment of the 8-hour ozone standard.

D. The Fredericksburg Area Has a Fully Approvable Maintenance Plan 
Pursuant to Section 175A of the CAA

    In conjunction with its request to redesignate the Fredericksburg 
area to attainment status, Virginia submitted a SIP revision to provide 
for maintenance of the 8-hour ozone NAAQS in the area for at least 10 
years after redesignation.
1. What Is Required in a Maintenance Plan?
    Section 175A of the CAA sets forth the elements of a maintenance 
plan for areas seeking redesignation from nonattainment to attainment. 
Under section 175A, the plan must demonstrate continued attainment of 
the applicable NAAQS for at least 10 years after approval of a 
redesignation of an area to attainment. Eight years after the 
redesignation, the Commonwealth must submit a revised maintenance plan 
demonstrating that attainment will continue to be maintained for the 10 
years following the initial 10-year period. To address the possibility 
of future NAAQS violations, the maintenance plan must contain such 
contingency measures, with a schedule for implementation, as EPA deems 
necessary to assure prompt correction of any future 8-hour ozone 
violations. Section 175A of the CAA sets forth the elements of a 
maintenance plan for areas seeking redesignation from nonattainment to 
attainment. The Calcagni memorandum dated September 4, 1992, provides 
additional guidance on the content of a maintenance plan. An ozone 
maintenance plan should address the following provisions:
    (a) An attainment emissions inventory;
    (b) A maintenance demonstration;
    (c) A monitoring network;
    (d) Verification of continued attainment; and
    (e) A contingency plan.
2. Analysis of the Fredericksburg Area Maintenance Plan
    (a) Attainment Inventory--An attainment inventory includes the 
emissions during the time period associated with the monitoring data 
showing attainment. The VADEQ determined that the appropriate 
attainment inventory year is 2004. That year establishes a reasonable 
year within the 3-year block of 2002-2004 as a baseline and accounts 
for reductions attributable to implementation of the CAA requirements 
to date.
    The VADEQ prepared comprehensive VOC and NOX emissions 
inventories for the City of Fredericksburg, Spotsylvania County, and 
Stafford County, including point (sources with emissions over 10 tons 
per year or greater), area, mobile on-road, and mobile non-road sources 
for a base year of 2002. All inventories are based on actual emissions 
for a ``typical summer day'' and consist of a list of sources and their 
associated emissions. An attainment year of 2004 was used for the 
Fredericksburg area since it is a reasonable year within the 3-year 
block of 2002-2004 and accounts for reductions attributable to 
implementation of the CAA requirements to date. Because an actual 
emissions inventory for point sources has not yet been completed for 
2004, the actual 2002 emissions inventory was used as a starting point 
and then projected to 2004 using Economic Growth Analysis System (EGAS 
5.0).
    To develop the NOX and VOC base year emissions 
inventories, VADEQ used the following approaches and sources of data:
    (i) Point source emissions are recorded and maintained 
electronically in the VADEQ's Comprehensive Environmental Data System 
(CEDS). The emissions for these sources are updated annually by 
collecting year-specific emissions and/or activity level information. 
While developing the emissions inventory, a cutoff emissions level of 
10 tpy of ozone precursor pollutants was used to determine whether a 
source was included in these inventories. Smaller emissions sources 
were assumed to be included in the area source emissions inventories.
    (ii) Area source emissions were developed using the 2002 periodic 
year stationary area source emissions inventories along with growth 
factors. Before attempting to calculate the growth factors, VADEQ 
determined the appropriate annual growth rate representative of each 
industry or indicator. ``Growth Rate'' refers to the annual percentage 
of growth that occurs in a category per year. The area source growth 
rate estimates also involve the use of current local source data, 
including area populations and employment data by source type.
    (iii) The process of estimating on-road mobile source emissions 
consists of two components: Vehicular-related activity (i.e., VMT) and 
an average rate of pollutant produced as a result of a particular level 
of activity. A pollutant emission rate associated with a particular 
level of activity emissions were estimated using MOBILE6.2 emissions 
factors. The VADEQ has provided detailed data summaries to document the 
calculations of mobile on-road VOC and NOX emissions for 
2002, as well as for the projection years of 2004, 2009, and 2015 
(shown in tables 4 and 5 below).
    (iv) Mobile non-road emissions were calculated using the NONROAD 
model that incorporates EPA's recent regulations affecting these engine 
types (recreational vehicles, lawn and garden equipment, and outdoor 
power equipment) well into the future. The VADEQ used the NONROAD model 
to calculate emissions for all nonroad engine types except for 
aircraft, locomotives, and commercial marine vessels which were 
inventoried separately. The VADEQ's nonroad inputs are based on the 
required RFG and the Stage II vapor recovery systems in Stafford 
County, while the City of Fredericksburg and Spotsylvania County's non-
road inputs are based on southern-grade conventional gasoline.
    The 2004 attainment year VOC and NOX emissions for the 
Fredericksburg area are summarized along with the 2009 and 2015 
projected emissions for this area in Tables 4 and 5 below, which covers 
the demonstration of maintenance for this area. EPA has concluded that 
the Commonwealth has adequately derived and documented the 2004 
attainment year VOC and NOX emissions for this area.
    (b) Maintenance Demonstration--On May 4, 2005, the VADEQ submitted 
a SIP revision to supplement its May 2, 2005 redesignation request. The 
submittal by VADEQ consists of the maintenance plan as required by 
section 175A of the CAA. This plan shows maintenance of the 8-hour 
ozone NAAQS by demonstrating that current and future emissions of VOC 
and NOX remain at or below the attainment year 2004 
emissions levels throughout the Fredericksburg area through the year 
2015. A maintenance demonstration need not be based on modeling. See 
Wall v. EPA, 265 F.3d 426 (6th Cir. 2001); Sierra Club v. EPA, 375 F.3d 
537 (7th Cir. 2004). See also 66 FR 53094, 53099-53100 (October 19, 
2001), 68 FR 25430-32 (May 12, 2003).
    Tables 4 and 5 specify the VOC and NOX emissions for the 
Fredericksburg area for 2004, 2009, and 2015. The VADEQ chose 2009 as 
an interim year in the 10-year maintenance demonstration period to 
demonstrate that the VOC and NOX emissions are not projected 
to increase above the 2004 attainment level during the time of the 10-
year maintenance period.

[[Page 66325]]



            Table 4.--Total VOC Emissions for 2004-2015 (tpd)
------------------------------------------------------------------------
                                          2004 VOC   2009 VOC   2015 VOC
            Source category              emissions  emissions  emissions
------------------------------------------------------------------------
Mobile \1\.............................     11.298      8.346      7.334
Nonroad................................      3.304      2.555      2.231
Area \2\...............................     14.070     13.161     15.303
Point..................................      0.602      0.692      0.782
                                        ------------
  Total................................     29.274     24.754    25.650
------------------------------------------------------------------------
\1\ Includes transportation conformity provisions.
\2\ Includes vehicle refueling emissions and the benefits of selected
  local controls (Stage I, CTG RACT, and open burning).


              Table 5.--Total NOX Emissions 2004-2015 (tpd)
------------------------------------------------------------------------
                                          2004 NOX   2009 NOX   2015 NOX
            Source category              emissions  emissions  emissions
------------------------------------------------------------------------
Mobile \1\.............................     19.742     12.062      7.576
Nonroad................................      3.601      3.080      2.195
Area \2\...............................      3.465      3.926      4.742
Point..................................      0.179      0.180      0.182
                                        ------------
  Total................................     26.987     20.248    14.695
------------------------------------------------------------------------
\1\ Includes transportation conformity provisions.
\2\ Includes selected local controls (open burning).

    Additionally, the following mobile programs are either effective or 
due to become effective and will further contribute to the maintenance 
demonstration of the 8-hour ozone NAAQS:
     Heavy duty diesel on-road (2004/2007) and low-sulfur on-
road (2006); (January 18, 2001, 66 FR 5002); and
     Non-road emissions standards (2008) and off-road diesel 
fuel (2007/2010); (June 29, 2004, 69 FR 39858).
    Lastly, to further improve air quality and to ensure continued 
attainment by maintaining emissions in the area at or below 2004 
levels, the Commonwealth of Virginia has initiated rulemaking to 
implement the following programs:
     Stage I Vapor Recovery requirements in Fredericksburg and 
Spotsylvania;
     Open burning restriction requirements in Fredericksburg 
and Spotsylvania; and
     VOC RACT requirements for CTG--subject sources in 
Fredericksburg and Spotsylvania.
    In addition to the above permanent and enforceable measures, CAIR 
should have positive impacts on the Commonwealth's air quality by the 
years 2009 and 2015.
    Based on the comparison of the projected emissions and the 
attainment year emissions along with the additional measures, EPA 
concludes that VADEQ has successfully demonstrated that the 8-hour 
ozone standard should be maintained in the Fredericksburg area.
    (c) Monitoring Network--There is currently one monitor measuring 
ozone in the Fredericksburg area. VADEQ will continue to operate its 
current air quality monitor in accordance with 40 CFR part 58. Should 
measured mobile source parameters change significantly over time, the 
Commonwealth will perform a saturation monitoring study to determine 
the need for, and location of, additional permanent monitors.
    (d) Verification of Continued Attainment--The Commonwealth of 
Virginia has the legal authority to implement and enforce specified 
measures necessary to attain and maintain the NAAQS. Key regulatory 
requirements that VADEQ will implement and retain to maintain 
attainment include expanding VOC RACT for CTG sources, Stage I Vapor 
Recovery, and open burning restrictions to the City of Fredericksburg 
and Spotsylvania County. The VADEQ will track the progress of the 
maintenance demonstration by periodically updating the emissions 
inventory. This tracking will consist of annual and periodic 
evaluations. The annual evaluation will consist of checks on key 
emissions trend indicators such as the annual emissions update of 
stationary sources, the Highway Performance Monitoring System (HPMS) 
VMT data reported to the Federal Highway Administration, and other 
growth indicators. These indicators will be compared to the growth 
assumptions used in the plan to determine if the predicted versus the 
observed growth remains relatively constant. The Commonwealth will also 
develop and submit comprehensive tracking inventories to EPA every 
three years during the maintenance plan period. For purpose of 
performing this tracking function for point sources, the Commonwealth 
will retain the annual emission statement requirements for the 
maintenance area (9 VAC 5-20-160).
    (e) The Maintenance Plan's Contingency Measures--The contingency 
plan provisions are designed to promptly correct a violation of the 
NAAQS that occurs after redesignation. Section 175A of the Act requires 
that a maintenance plan include such contingency measures as EPA deems 
necessary to ensure that the Commonwealth will promptly correct a 
violation of the NAAQS that occurs after redesignation. The maintenance 
plan should identify the events that would ``trigger'' the adoption and 
implementation of a contingency measure(s), the contingency measures 
that would be adopted and implemented, and the schedule indicating the 
time frame by which the state would adopt and implement the measure(s).
    The ability of the Fredericksburg area to stay in compliance with 
the 8-hour ozone standard after redesignation depends upon VOC and 
NOX emissions in the area remaining at or below 2004 levels. 
The Commonwealth's maintenance plan projects VOC and NOX 
emissions to decrease and stay below 2004 levels through the year 2015. 
However, if emissions do not decrease as expected, or if emissions 
increase, the area may experience 8-hour ozone violations.
    The Commonwealth's maintenance plan lays out three situations where 
the need to adopt and implement a contingency measure to further reduce 
emissions would be triggered. Those situations are as follows:
    (i) An actual increase of the VOC or NOX emissions above 
the 2004 attainment levels is identified or predicted through the 
development of the comprehensive periodic tracking inventories--The 
maintenance plan states that the VADEQ will monitor the observed growth 
rates for VMT, population, and point source VOC and NOX 
emissions on a yearly basis which will serve as an early warning 
indicator of the potential for a violation. The plan also states that 
comprehensive tracking inventories will also be developed every 3 years 
using current EPA-approved methods to estimate emissions, concentrating 
on areas identified in the less rigorous yearly evaluations as being 
potential problems. If the 2004 attainment level emissions for VOC or 
NOX is exceeded or is predicted to be exceeded, the 
following measures will be implemented:
     Preparation of a complete VOC and NOX emission 
inventory; and
     The expanded implementation of one or more of the 
following of Virginia's area source VOC regulations throughout the 
entire Fredericksburg area (these regulations are already required in 
Stafford County): Emission Standards for Portable Fuel Container 
Spillage (9 VAC 5 Chapter 40, Article 42); Emission Standards for 
Mobile Equipment Repair and Refinishing Operations (9 VAC 5 Chapter 40, 
Article 48); Emission Standards for Architectural and Industrial 
Maintenance Coatings (9 VAC 5 Chapter 40, Article 49); and Emission 
Standards for Consumer Products (9 VAC 5 Chapter 40, Article 50).
    (ii) The Stafford County monitor indicates two or more ozone 
exceedances (any fourth highest 8-hour

[[Page 66326]]

average above 0.08 ppm) in consecutive years--According to the 
maintenance plan, if two or more ozone exceedances (any fourth highest 
8-hour average above 0.08 ppm) are recorded in consecutive years, the 
following measure(s) will be implemented:
     The expanded implementation of one or more of the 
following of Virginia's area source VOC regulations throughout the 
entire Fredericksburg area (these regulations are already required in 
Stafford County): Emission Standards for Portable Fuel Container 
Spillage (9 VAC 5 Chapter 40, Article 42); Emission Standards for 
Mobile Equipment Repair and Refinishing Operations (9 VAC 5 Chapter 40, 
Article 48); Emission Standards for Architectural and Industrial 
Maintenance Coatings (9 VAC 5 Chapter 40, Article 49); and Emission 
Standards for Consumer Products (9 VAC 5 Chapter 40, Article 50).
    (iii) A violation (any 3 year average of each annual fourth highest 
8-hour average) of the 8-hour ozone NAAQS of 0.08 ppm occurs--The 
maintenance plan states that if a violation (any 3 year average of each 
annual fourth highest 8-hour average) of the 8-hour ozone NAAQS of 0.08 
ppm occurs, the contingency measures will be implemented as follows:
     If there remain any VOC regulations [Emissions Standards 
for Portable Fuel Container Spillage (9 VAC 5 Chapter 40, Article 42); 
Emissions Standards for Mobile Equipment Repair and Refinishing 
Operations (9 VAC 5 Chapter 40, Article 48); Emission Standards for 
Architectural and Industrial Maintenance Coatings (9 VAC 5 Chapter 40, 
Article 49); and Emission Standards for Consumer Products (9 VAC 5 
Chapter 40, Article 50)] not yet implemented following an earlier 
maintenance plan trigger event, expand the implementation of those 
remaining measures throughout the entire Fredericksburg area (these 
regulations are already required in Stafford County);
     If a violation of the ozone standard occurs in an ozone 
season subsequent to implementation of all of the Commonwealth's VOC 
area source regulations, then implement NOX RACT and VOC 
RACT for non-CTG sources emitting above 100 tpy located in Spotsylvania 
County and the City of Fredericksburg. Source categories that may be 
affected by this requirement include equipment manufacturing 
(NOX RACT and VOC RACT for non-CTG RACT has already been 
implemented in Stafford County, due to prior 1-hour ozone NAAQS 
requirements).
    The following schedule for adoption, implementation and compliance 
applies to the contingency measures concerning non-CTG RACT 
requirements. It would also apply to the imposition of the area source 
VOC regulations if those regulations had not already been implemented 
due to other triggers or provisions of the maintenance plan.
     Notification received from EPA that a contingency measure 
must be implemented, or three months after a recorded violation;
     Applicable regulation to be adopted 6 months after this 
date;
     Applicable regulation to be implemented 6 months after 
adoption \3\;
---------------------------------------------------------------------------

    \3\ In the event of implementation of the RACT contingency 
measure, Virginia would amend its current RACT regulations to apply 
them to non-CTG sources in Spotsylvania County and the City of 
Fredericksburg within 6 months after (a) notification received from 
EPA that the contingency measure must be implemented, or (b) three 
months after a recorded violation. The newly subject non-CTG RACT 
sources would need to develop source-specific RACT plans and comply 
with their plans no later than 12 months from the date of Virginia's 
adoption of the amended regulations.
---------------------------------------------------------------------------

     Compliance with regulation to be achieved within 12 months 
of adoption.
    (f) An Additional Provision of the Maintenance Plan--The 
Commonwealth's maintenance plan for the Fredericksburg area has an 
additional provision. That provision states that regardless of the 
number of exceedances or violations noted, the regulations controlling 
VOC emissions from area sources: Article 42 Emission Standards for 
Portable Fuel Container Spillage (9 VAC 5 Chapter 40, Article 48); 
Emission Standards for Mobile Equipment Repair and Refinishing 
Operations (9 VAC 5 Chapter 40, Article 49); Emission Standards for 
Architectural and Industrial Maintenance Coatings (9 VAC 5 Chapter 40, 
Article 50); and Emission Standards for Consumer Products (9 VAC 5 
Chapter 40) will be expanded to the City of Fredericksburg and 
Spotsylvania County such that these regulations will take effect in 
2008, or as expeditiously as possible thereafter in order to provide 
additional air quality benefits.
    The maintenance plan adequately addresses the five basic components 
of a maintenance plan: Attainment inventory, maintenance demonstration, 
monitoring network, verification of continued attainment, and a 
contingency plan. EPA believes that the maintenance plan SIP revision 
submitted by Virginia for the Fredericksburg area meets the 
requirements of section 175A of the Act.

VII. Are the Motor Vehicle Emissions Budgets Established and Identified 
in the Maintenance Plan for the Fredericksburg Area Adequate and 
Approvable?

A. What Are the Motor Vehicle Emissions Budgets?

    Under the CAA, States are required to submit, at various times, 
control strategy SIPs and maintenance plans in ozone areas. These 
control strategy SIPs (i.e. Reasonable Further Progress SIPs and 
attainment demonstration SIPs) and maintenance plans identify and 
establish MVEBs for certain criteria pollutants and/or their precursors 
to address pollution from on-road mobile sources. In the maintenance 
plan the MVEBs are termed ``on-road mobile source emissions budgets''. 
Pursuant to 40 CFR part 93 and 51.112, MVEBs must be established in an 
ozone maintenance plan. An MVEB is the portion of the total allowable 
emissions that is allocated to highway and transit vehicle use and 
emissions. An MVEB serves as a ceiling on emissions from an area's 
planned transportation system. The MVEB concept is further explained in 
the preamble to the November 24, 1993, transportation conformity rule 
(58 FR 62188). The preamble also describes how to establish and revise 
the MVEBs in control strategy SIPs and maintenance plans.
    Under section 176(c) of the CAA, new transportation projects, such 
as the construction of new highways, must ``conform'' to (i.e., be 
consistent with) the part of the State's air quality plan that 
addresses pollution from cars and trucks. ``Conformity'' to the SIP 
means that transportation activities will not cause new air quality 
violations, worsen existing violations, or delay timely attainment of 
or reasonable progress towards the national ambient air quality 
standards. If a transportation plan does not ``conform,'' most new 
projects that would expand the capacity of roadways cannot go forward. 
Regulations at 40 CFR part 93 set forth EPA policy, criteria, and 
procedures for demonstrating and assuring conformity of such 
transportation activities to a state implementation plan.
    When reviewing submitted ``control strategy'' SIPs or maintenance 
plans containing MVEBs, EPA must affirmatively find the MVEB budget 
contained therein ``adequate'' for use in determining transportation 
conformity. After EPA affirmatively finds the submitted MVEB is 
adequate for transportation conformity purposes, that MVEB can be used 
by state and Federal agencies in determining whether proposed 
transportation projects

[[Page 66327]]

``conform'' to the state implementation plan as required by section 
176(c) of the CAA. EPA's substantive criteria for determining 
``adequacy'' of an MVEB are set out in 40 CFR 93.118(e)(4).
    EPA's process for determining ``adequacy'' consists of three basic 
steps: Public notification of a SIP submission, a public comment 
period, and EPA's adequacy finding. This process for determining the 
adequacy of submitted SIP MVEBs was initially outlined in EPA's May 14, 
1999 guidance, ``Conformity Guidance on Implementation of March 2, 
1999, Conformity Court Decision''. This guidance was finalized in the 
Transportation Conformity Rule Amendments for the ``New 8-Hour Ozone 
and PM2.5 National Ambient Air Quality Standards and Miscellaneous 
Revisions for Existing Areas; Transportation Conformity Rule 
Amendments--Response to Court Decision and Additional Rule Change'' on 
July 1, 2004 (69 FR 40004). EPA follows this guidance and rulemaking in 
making its adequacy determinations.
    The MVEBs for the Fredericksburg area are listed in Table 1 of this 
document for the 2004, 2009, and 2015 years and are the projected 
emissions for the on-road mobile sources plus any portion of the safety 
margin allocated to the MVEBs. These emission budgets, when approved by 
EPA, must be used for transportation conformity determinations.

B. What Is a Safety Margin?

    A ``safety margin'' is the difference between the attainment level 
of emissions (from all sources) and the projected level of emissions 
(from all sources) in the maintenance plan. The attainment level of 
emissions is the level of emissions during one of the years in which 
the area met the NAAQS. The following example is for the 2015 safety 
margin: The Fredericksburg area first attained the 8-hour ozone NAAQS 
during the 2002 to 2004 time period. The Commonwealth used 2004 as the 
year to determine attainment levels of emissions for the Fredericksburg 
area. The total emissions from point, area, non road and mobile sources 
in 2004 equaled 29.274 tpd of VOC and 26.987 tpd of NOX. The 
VADEQ projected emissions out to the year 2015 and projected a total of 
25.650 tpd of VOC and 14.695 tpd of NOX from all sources in 
the Fredericksburg area. The safety margin for the Fredericksburg area 
for 2015 would be the difference between these amounts, or 3.624 tpd of 
VOC and 12.292 tpd of NOX. The emissions up to the level of 
the attainment year including the safety margins are projected to 
maintain the area's air quality consistent with the 8-hour ozone NAAQS. 
The safety margin is the extra emissions reduction below the attainment 
levels that can be allocated for emissions by various sources as long 
as the total emission levels are maintained at or below the attainment 
levels. The following table shows the safety margins for the 2009 and 
2015 years.

   Table 6.--2009 and 2015 Safety Margins for the Fredericksburg Area
------------------------------------------------------------------------
                                        VOC emissions     NOX emissions
           Inventory year                   (tpd)             (tpd)
------------------------------------------------------------------------
2004 Attainment.....................            29.274            26.987
2009 Interim........................            24.754            20.248
2009 Safety Margin..................             4.520             6.739
2004 Attainment.....................            29.274            26.987
2015 Final..........................            25.650            14.695
2015 Safety Margin..................             3.624            12.292
------------------------------------------------------------------------

    The VADEQ allocated 0.25 tpd of the safety margin to both the 2009 
interim VOC projected on-road mobile source emissions projection and 
the 2009 interim NOX projected on-road mobile source 
emissions projection to arrive at the 2009 MVEBs. For the 2015 MVEBs 
the VADEQ allocated 0.25 tpd NOX and 1.6 tpd VOC from the 
2015 safety margins to arrive at the 2015 MVEBs. Once allocated to the 
mobile source budgets these portions of the safety margins are no 
longer available, and may no longer be allocated to any other source 
category.

     Table 7.--2009 and 2015 Final MVEBs for the Fredericksburg Area
------------------------------------------------------------------------
                                       VOC  emissions     NOX emissions
           Inventory year                   (tpd)             (tpd)
------------------------------------------------------------------------
2009 projected on-road mobile source             8.096            12.812
 projected emissions................
2009 Safety Margin Allocated to                  0.250             0.250
 MVEBs..............................
2009 MVEBs..........................             8.346            13.062
2015 projected on-road mobile source             5.734             7.326
 projected emissions................
2015 Safety Margin Allocated to                  1.600             0.250
 MVEBs..............................
2015 MVEBs..........................             7.334             7.576
------------------------------------------------------------------------

C. Why Are the MVEBs Approvable?

    The 2004, 2009 and 2015 MVEBs for the Fredericksburg area are 
approvable because the motor vehicle emissions budgets for 
NOX and VOC including the allocated safety margins continue 
to maintain the total emissions at or below the attainment year 
inventory levels as required by the transportation conformity 
regulations.

D. What Is the Adequacy and Approval Process for the MVEBs in the 
Fredericksburg Area Maintenance Plan?

    The MVEBs for the Fredericksburg maintenance plan are being posted 
to EPA's conformity Web site concurrent with this proposal. The public 
comment period will end at the same time as the public comment period 
for this proposed rule. In this case, EPA is concurrently processing 
the action on the maintenance plan and the adequacy process for the 
MVEBs contained therein. In this proposed rule, EPA is proposing to 
find the MVEBs adequate

[[Page 66328]]

and also proposing to approve the MVEBs as part of the maintenance 
plan. The MVEBs cannot be used for transportation conformity until the 
maintenance plan update and associated MVEBs are approved in a final 
Federal Register notice, or EPA otherwise finds the budget adequate in 
a separate action following the comment period.
    If EPA receives adverse written comments with respect to the 
proposed approval of the Fredericksburg MVEBs, or any other aspect of 
our proposed approval of this updated maintenance plan, we will respond 
to the comments on the MVEBs in our final action or proceed with the 
adequacy process as a separate action. Our action on the Fredericksburg 
MVEBs will also be announced on EPA's conformity Web site: http://www.epa.gov/oms/traq
, (once there, click on the ``Conformity'' button, 

then look for ``Adequacy Review of SIP Submissions for Conformity'').

VIII. 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.

IX. Proposed Actions

    EPA is proposing to determine that the Frdericksburg area has 
attainted the 8-hour ozone NAAQS. The EPA is also proposing to approve 
the Commonwealth of Virginia's May 2, 2005 request for the 
Fredericksburg area to attainment of the 8-hour NAAQS for ozone because 
the requirements for approval have been satisfied. EPA has evaluated 
Virginia's redesignation request 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 area has attained the 8-hour ozone standard. The 
final approval of this redesignation request would change the 
designation of the Fredericksburg area from nonattainment to attainment 
for the 8-hour ozone standard. EPA is also proposing to approve the 
associated maintenance plan for this area, submitted on May 4, 2005, as 
a revision to the Virginia SIP. EPA is proposing to approve the 
maintenance plan for the area because it meets the requirements of 
section 175A. EPA is also proposing to approve the MVEBs submitted by 
Virginia for the area in conjunction with its redesignation request. 
EPA is soliciting public comments on the issues discussed in this 
document. These comments will be considered before taking final action.

X. 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. 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

[[Page 66329]]

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 (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 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.
    This rule proposing to approve the redesignation of the 
Fredericksburg area to attainment for the 8-hour ozone NAAQS, the 
associated maintenance plan, and the MVEBs identified in the 
maintenance plan, 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

40 CFR Part 52

    Environmental protection, Air pollution control, Nitrogen oxides, 
Ozone, Reporting and recordkeeping requirements, Volatile organic 
compounds.

40 CFR Part 81

    Air pollution control, National Parks, Wilderness areas.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: October 27, 2005.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. 05-21835 Filed 11-1-05; 8:45 am]

BILLING CODE 6560-50-P
