

[Federal Register: December 23, 2005 (Volume 70, Number 246)]
[Rules and Regulations]               
[Page 76165-76168]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23de05-9]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R03-OAR-2005-VA-0007; FRL-8012-2]

 
Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Redesignation of the City of Fredericksburg, Spotsylvania 
County, and Stafford County Ozone Nonattainment Area to Attainment and 
Approval of the Area's Maintenance Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a redesignation request and a State 
Implementation Plan (SIP) revision submitted by the Commonwealth of 
Virginia. The Virginia Department of Environmental Quality (VADEQ) is 
requesting that the City of Fredericksburg, Spotsylvania County, and 
Stafford County (the Fredericksburg area) be redesignated as attainment 
for the 8-hour ozone national ambient air quality standard (NAAQS). In 
conjunction with its redesignation request, the Commonwealth submitted 
a SIP revision consisting of a maintenance plan for the Fredericksburg 
area that provides for continued attainment of the 8-hour ozone NAAQS 
for the next 10 years. EPA is also approving the adequacy determination 
for the motor vehicle emission budgets (MVEBs) that are identified in 
the 8-hour maintenance plan for the Fredericksburg area for purposes of 
transportation conformity, and is approving those MVEBs. EPA is 
approving the redesignation request and the maintenance plan revision 
to the Virginia SIP in accordance with the requirements of the CAA.

DATES: Effective Date: This final rule is effective on January 23, 
2006.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2005-VA-0007. All documents in the docket are listed 
in the http://www.regulations.gov Web site. Although listed in the 

electronic docket, some information is not publicly available, i.e., 
confidential business information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through http://www.regulations.gov
 or in hard copy for public inspection during normal 

business hours at the Air Protection Division, U.S. Environmental 
Protection Agency, Region III, 1650 Arch Street, Philadelphia, 
Pennsylvania 19103. Copies of the State submittal are available at the 
Virginia Department of Environmental Quality, 629 East Main Street, 
Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Amy Caprio, (215) 814-2156, or by e-
mail at caprio.amy@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    On September 12, 2005 (70 FR 53746), EPA proposed approval of a 
redesignation request and maintenance plan submitted by the 
Commonwealth of Virginia for the Fredericksburg area. On September 30, 
2005 (70 FR 57238), EPA withdrew the September 12, 2005 proposed rule.
    On November 2, 2005 (70 FR 66316), EPA published a notice of 
proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR 
proposed approval of both Virginia's redesignation request and a SIP 
revision that establishes a maintenance plan for the Fredericksburg 
area that sets forth how the Fredericksburg area will maintain 
attainment of the 8-hour ozone NAAQS for the next 10 years. The formal 
SIP revision was submitted by the VADEQ on May 2, 2005 and May 4, 2005. 
Other specific requirements of Virginia's redesignation request SIP 
revision for the maintenance plan, and the rationale for EPA's proposed 
action are explained in the NPR and will not be restated here. No 
public comments were received on the NPR.

II. General Information Pertaining to SIP Submittals From the 
Commonwealth of Virginia

    In 1995, Virginia adopted legislation that provides, subject to 
certain conditions, for an environmental assessment (audit) 
``privilege'' for voluntary compliance evaluations performed by a 
regulated entity. The legislation further addresses the relative burden 
of proof for parties either asserting the privilege or seeking 
disclosure of documents for which the privilege is claimed. Virginia's 
legislation also provides, subject to certain conditions, for a penalty 
waiver for violations of environmental laws when a regulated entity 
discovers such violations pursuant to a voluntary compliance evaluation 
and voluntarily discloses such violations to the Commonwealth and takes 
prompt and appropriate measures to remedy the violations. Virginia's 
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and 
information about the content of those documents that are the product 
of a voluntary environmental assessment. The Privilege Law does not 
extend to documents or information (1) that are generated or developed 
before the commencement of a voluntary environmental assessment; (2) 
that are prepared independently of the assessment process; (3) that 
demonstrate a clear, imminent and substantial danger to the public 
health or environment; or (4) that are required by law.
    On January 12, 1998, the Commonwealth of Virginia Office of the 
Attorney General provided a legal opinion that states that the 
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege 
to documents and information ``required by law,''

[[Page 76166]]

including documents and information ``required by Federal law to 
maintain program delegation, authorization or approval,'' since 
Virginia must ``enforce Federally authorized environmental programs in 
a manner that is no less stringent than their Federal counterparts * * 
*.'' The opinion concludes that ``[r]egarding Sec.  10.1-1198, 
therefore, documents or other information needed for civil or criminal 
enforcement under one of these programs could not be privileged because 
such documents and information are essential to pursuing enforcement in 
a manner required by Federal law to maintain program delegation, 
authorization or approval.''
    Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that 
``[t]o the extent consistent with requirements imposed by Federal 
law,'' any person making a voluntary disclosure of information to a 
state agency regarding a violation of an environmental statute, 
regulation, permit, or administrative order is granted immunity from 
administrative or civil penalty. The Attorney General's January 12, 
1998 opinion states that the quoted language renders this statute 
inapplicable to enforcement of any Federally authorized programs, since 
``no immunity could be afforded from administrative, civil, or criminal 
penalties because granting such immunity would not be consistent with 
Federal law, which is one of the criteria for immunity.''
    Therefore, EPA has determined that Virginia's Privilege and 
Immunity statutes will not preclude the Commonwealth from enforcing its 
program consistent with the Federal requirements. In any event, because 
EPA has also determined that a state audit privilege and immunity law 
can affect only state enforcement and cannot have any impact on Federal 
enforcement authorities, EPA may at any time invoke its authority under 
the Clean Air Act, including, for example, sections 113, 167, 205, 211 
or 213, to enforce the requirements or prohibitions of the state plan, 
independently of any state enforcement effort. In addition, citizen 
enforcement under section 304 of the Clean Air Act is likewise 
unaffected by this, or any, state audit privilege or immunity law.

III. Final Action

    EPA is approving the Commonwealth of Virginia's May 2, 2005 
redesignation request and May 4, 2005 maintenance plan because the 
requirements for approval have been satisfied. EPA has evaluated 
Virginia's redesignation request, submitted on May 2, 2005, and 
determined that it meets the redesignation criteria set forth in 
section 107(d)(3)(E) of the CAA. EPA believes that the redesignation 
request and monitoring data demonstrate that the Fredericksburg area 
has attained the 8-hour ozone standard. The final approval of this 
redesignation request will change the designation of the Fredericksburg 
area from nonattainment to attainment for the 8-hour ozone standard. 
EPA is approving the associated maintenance plan for this area, 
submitted on May 4, 2005, as a revision to the Virginia SIP. EPA is 
approving the maintenance plan for the Fredericksburg area because it 
meets the requirements of section 175A. EPA is also approving the MVEBs 
submitted by Virginia for this area in conjunction with its 
redesignation request. The Fredericksburg area is subject to the CAA's 
requirements for moderate ozone nonattainment areas until and unless it 
is redesignated to attainment.

IV. Statutory and Executive Order Reviews

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)). This 
action merely approves state law as meeting Federal requirements and 
imposes no additional requirements beyond those imposed by state law. 
Redesignation of an area to attainment under section 107(d)(3)(e) of 
the Clean Air Act does not impose any new requirements on small 
entities. Redesignation is an action that affects the status of a 
geographical area and does not impose any new regulatory requirements 
on sources. Accordingly, the Administrator certifies that this rule 
will not have a significant economic impact on a substantial number of 
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.). Because this rule approves pre-existing requirements under state 
law and does not impose any additional enforceable duty beyond that 
required by state law, it does not contain any unfunded mandate or 
significantly or uniquely affect small governments, as described in the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also 
does not have a substantial direct effect on one or more Indian tribes, 
on the relationship between the Federal Government and Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal Government and Indian tribes, as specified by Executive Order 
13175 (65 FR 67249, November 9, 2000), nor will it have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132 (64 FR 43255, August 10, 1999), because it 
merely proposes to affect the status of a geographical area, does not 
impose any new requirements on sources, or allow the state to avoid 
adopting or implementing other requirements, and does not alter the 
relationship or the distribution of power and responsibilities 
established in the Clean Air Act. This rule also is not subject to 
Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not 
economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Redesignation is an 
action that affects the status of a geographical area and does not 
impose any new requirements on sources. Thus, the requirements of 
section 12(d) of the National Technology Transfer and Advancement Act 
of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of 
Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this 
rule, EPA has taken the necessary steps to eliminate drafting errors 
and ambiguity, minimize potential litigation, and provide a clear legal 
standard for affected conduct. EPA has complied with Executive Order 
12630 (53 FR 8859, March 15, 1988) by examining the takings 
implications of the rule in accordance with the ``Attorney General's 
Supplemental Guidelines for the Evaluation of Risk and Avoidance of 
Unanticipated Takings'' issued under the executive order.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a

[[Page 76167]]

copy of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in the Federal Register. This rule is 
not a ``major rule'' as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by February 21, 2006. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action.
    This action, to approve the redesignation request, maintenance plan 
and adequacy determination for MVEBs for the Fredericksburg area, may 
not be challenged later in proceedings to enforce its requirements. 
(See section 307(b)(2).)

List of Subjects

40 CFR Part 52

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

40 CFR Part 81

    Environmental protection, Air pollution control, National parks, 
Wilderness areas.

    Dated: December 13, 2005.
Donald S. Welsh,
Regional Administrator, Region III.

0
40 CFR parts 52 and 81 are amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart VV--Virginia

0
2. In Sec.  52.2420, the table in paragraph (e) is amended by adding an 
entry for the 8-Hour Ozone Maintenance Plan, Fredericksburg, VA Area at 
the end of the table to read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
   Name of non-regulatory SIP     Applicable geographic        State                              Additional
            revision                       area           submittal date   EPA approval date      explanation
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
8-Hour Ozone Maintenance Plan    City of Fredericksburg,          5/4/05  12/23/05 [Insert
 for the Fredericksburg VA Area.  Spotsylvania County,                     page number where
                                  and Stafford County.                     the document
                                                                           begins].
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PART 81--[AMENDED]

0
1. The authority citation for Part 81 continues to read as follows:

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

0
2. Section 81.347 is amended by revising the ozone table entry for the 
Fredericksburg, VA Area to read as follows:


Sec.  81.347  Virginia.

* * * * *

                                        Virginia--Ozone (8-Hour Standard)
----------------------------------------------------------------------------------------------------------------
                                                 Designation \a\                      Category/classification
        Designated area        ---------------------------------------------------------------------------------
                                   Date \1\                   Type                   Date \1\          Type
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Fredericksburg, VA Area:
    City of Fredericksburg....        12/23/05  Attainment......................
    Spotsylvania County.......        12/23/05  Attainment......................
    Stafford County...........        12/23/05  Attainment......................

                                                  * * * * * * *
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\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.


[[Page 76168]]

[FR Doc. 05-24363 Filed 12-22-05; 8:45 am]

BILLING CODE 6560-50-P
