ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Parts
52
and
81
[
EPA­
R03­
OAR­
2005­
VA­
0013;
FRL­
]

Approval
and
Promulgation
of
Air
Quality
Implementation
Plans;
Virginia;
Redesignation
of
the
Shenandoah
National
Park
Ozone
Nonattainment
Area
to
Attainment
and
Approval
of
the
Area's
Maintenance
Plan
AGENCY:
Environmental
Protection
Agency
(
EPA).

ACTION:
Final
rule.

SUMMARY:
EPA
is
approving
a
redesignation
request
and
a
State
Implementation
Plan
(
SIP)

revision
submitted
by
the
Commonwealth
of
Virginia.
The
Virginia
Department
of
Environmental
Quality
(
VADEQ)
is
requesting
that
the
Shenandoah
National
Park
area
(
the
SNP
area)
be
redesignated
as
attainment
for
the
8­
hour
ozone
national
ambient
air
quality
standard
(
NAAQS).

In
conjunction
with
its
redesignation
request,
the
Commonwealth
submitted
a
SIP
revision
consisting
of
a
maintenance
plan
for
the
SNP
area
that
provides
for
continued
attainment
of
the
8­

hour
ozone
NAAQS
for
the
next
10
years.
EPA
is
also
approving
the
adequacy
determination
for
the
motor
vehicle
emission
budgets
(
MVEBs)
that
are
identified
in
the
8­
hour
maintenance
plan
for
the
SNP
area
for
purposes
of
transportation
conformity,
and
is
approving
those
MVEBs.

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

EFFECTIVE
DATE:
This
final
rule
is
effective
on
[
insert
date
30
days
from
date
of
publication].
2
ADDRESSES:
EPA
has
established
a
docket
for
this
action
under
Docket
ID
Number
EPAR03
OAR­
2005­
VA­
0013.
All
documents
in
the
docket
are
listed
in
the
www.
regulations.
gov
website.
Although
listed
in
the
electronic
docket,
some
information
is
not
publicly
available,
i.
e.,

confidential
business
information
(
CBI)
or
other
information
whose
disclosure
is
restricted
by
statute.
Certain
other
material,
such
as
copyrighted
material,
is
not
placed
on
the
Internet
and
will
be
publicly
available
only
in
hard
copy
form.
Publicly
available
docket
materials
are
available
either
electronically
through
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
November
4,
2005
(
70
FR
67109),
EPA
published
a
notice
of
proposed
rulemaking
(
NPR)
for
the
Commonwealth
of
Virginia.
The
NPR
proposed
approval
of
Virginia's
redesignation
request
and
a
SIP
revision
that
establishes
a
maintenance
plan
for
the
SNP
area
that
sets
forth
how
the
SNP
area
will
maintain
attainment
of
the
8­
hour
ozone
NAAQS
for
the
next
10
years.
The
formal
SIP
revision
was
submitted
by
the
VADEQ
on
September
21,
2005
and
September
23,
2005.

Other
specific
requirements
of
Virginia's
redesignation
request
SIP
revision
for
the
maintenance
3
plan,
and
the
rationale
for
EPA's
proposed
action
are
explained
in
the
NPR
and
will
not
be
restated
here.
No
adverse
public
comments
were
received
on
the
NPR.

II.
General
Information
Pertaining
to
SIP
Submittals
From
the
Commonwealth
of
Virginia
In
1995,
Virginia
adopted
legislation
that
provides,
subject
to
certain
conditions,
for
an
environmental
assessment
(
audit)
"
privilege"'
for
voluntary
compliance
evaluations
performed
by
a
regulated
entity.
The
legislation
further
addresses
the
relative
burden
of
proof
for
parties
either
asserting
the
privilege
or
seeking
disclosure
of
documents
for
which
the
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.
4
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
§
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
5
only
state
enforcement
and
cannot
have
any
impact
on
Federal
enforcement
authorities,
EPA
may
at
any
time
invoke
its
authority
under
the
Clean
Air
Act,
including,
for
example,
sections
113,

167,
205,
211
or
213,
to
enforce
the
requirements
or
prohibitions
of
the
state
plan,
independently
of
any
state
enforcement
effort.
In
addition,
citizen
enforcement
under
section
304
of
the
Clean
Air
Act
is
likewise
unaffected
by
this,
or
any,
state
audit
privilege
or
immunity
law.

III.
Final
Action
EPA
is
approving
the
Commonwealth
of
Virginia's
September
21,
2005
redesignation
request
and
September
23,
2005
maintenance
plan
because
the
requirements
for
approval
have
been
satisfied.

EPA
has
evaluated
Virginia's
redesignation
request,
submitted
on
September
21,
2005,
and
determined
that
it
meets
the
redesignation
criteria
set
forth
in
section
107(
d)(
3)(
E)
of
the
CAA.

EPA
believes
that
the
redesignation
request
and
monitoring
data
demonstrate
that
the
SNP
area
has
attained
the
8­
hour
ozone
standard.
The
final
approval
of
this
redesignation
request
will
change
the
designation
of
the
SNP
area
from
nonattainment
to
attainment
for
the
8­
hour
ozone
standard.
EPA
is
approving
the
associated
maintenance
plan
for
this
area,
submitted
on
September
23,
2005,
as
a
revision
to
the
Virginia
SIP.
EPA
is
approving
the
maintenance
plan
for
the
SNP
area
because
it
meets
the
requirements
of
section
175A.
EPA
is
also
approving
the
MVEBs
submitted
by
Virginia
for
this
area
in
conjunction
with
its
redesignation
request.
The
SNP
area
is
subject
to
the
CAA's
requirements
for
basic
ozone
nonattainment
areas
until
and
unless
it
is
redesignated
to
attainment.
6
IV.
Statutory
and
Executive
Order
Reviews
A.
General
Requirements
Under
Executive
Order
12866
(
58
FR
51735,
October
4,
1993),
this
proposed
action
is
not
a
"
significant
regulatory
action"
and
therefore
is
not
subject
to
review
by
the
Office
of
Management
and
Budget.
For
this
reason,
this
action
is
also
not
subject
to
Executive
Order
13211,
"
Actions
Concerning
Regulations
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use"
(
66
Fed.

Reg.
28355
(
May
22,
2001)).
This
action
merely
proposes
to
approve
state
law
as
meeting
Federal
requirements
and
imposes
no
additional
requirements
beyond
those
imposed
by
state
law.

Redesignation
of
an
area
to
attainment
under
section
107(
d)(
3)(
e)
of
the
Clean
Air
Act
does
not
impose
any
new
requirements
on
small
entities.
Redesignation
is
an
action
that
affects
the
status
of
a
geographical
area
and
does
not
impose
any
new
regulatory
requirements
on
sources.

Accordingly,
the
Administrator
certifies
that
this
proposed
rule
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities
under
the
Regulatory
Flexibility
Act
(
5
U.
S.
C.
601
et
seq.).
Because
this
rule
proposes
to
approve
pre­
existing
requirements
under
state
law
and
does
not
impose
any
additional
enforceable
duty
beyond
that
required
by
state
law,
it
does
not
contain
any
unfunded
mandate
or
significantly
or
uniquely
affect
small
governments,
as
described
in
the
Unfunded
Mandates
Reform
Act
of
1995
(
Public
Law
104­
4).
This
proposed
rule
also
does
not
have
a
substantial
direct
effect
on
one
or
more
Indian
tribes,
on
the
relationship
between
the
Federal
Government
and
Indian
tribes,
or
on
the
distribution
of
power
and
responsibilities
between
the
Federal
Government
and
Indian
tribes,
as
specified
by
Executive
Order
13175
(
65
FR
67249,
November
9,
2000),
nor
will
it
have
substantial
direct
effects
on
the
States,
on
the
relationship
between
the
national
government
and
the
States,
or
on
the
distribution
7
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"
8
issued
under
the
executive
order.

B.
Submission
to
Congress
and
the
Comptroller
General
The
Congressional
Review
Act,
5
U.
S.
C.
801
et
seq.,
as
added
by
the
Small
Business
Regulatory
Enforcement
Fairness
Act
of
1996,
generally
provides
that
before
a
rule
may
take
effect,
the
agency
promulgating
the
rule
must
submit
a
rule
report,
which
includes
a
copy
of
the
rule,
to
each
House
of
the
Congress
and
to
the
Comptroller
General
of
the
United
States.
EPA
will
submit
a
report
containing
this
rule
and
other
required
information
to
the
U.
S.
Senate,
the
U.
S.
House
of
Representatives,
and
the
Comptroller
General
of
the
United
States
prior
to
publication
of
the
rule
in
the
Federal
Register.
This
rule
is
not
a
"
major
rule"
as
defined
by
5
U.
S.
C.
804(
2).

C.
Petitions
for
Judicial
Review
Under
section
307(
b)(
1)
of
the
Clean
Air
Act,
petitions
for
judicial
review
of
this
action
must
be
filed
in
the
United
States
Court
of
Appeals
for
the
appropriate
circuit
by
[
insert
date
60
days
from
date
of
publication
of
this
document
in
the
Federal
Register].
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.
9
This
action,
to
approve
the
redesignation
request,
maintenance
plan
and
adequacy
determination
for
MVEBs
for
the
SNP
area,
may
not
be
challenged
later
in
proceedings
to
enforce
its
requirements.
(
See
section
307(
b)(
2).)

List
of
Subjects
40
CFR
part
52
Environmental
protection,
Air
pollution
control,
Intergovernmental
relations,
Ozone,
Nitrogen
Oxides,
Reporting
and
recordkeeping
requirements,
Volatile
organic
compounds.

40
CFR
Part
81
Air
Pollution
Control,
National
Parks,
Wilderness
Areas
/
s/

_________
___________________________
Dated:
December
14,
2005
Donald
S.
Welsh,
Regional
Administrator,
Region
III.
10
40
CFR
parts
52
and
81
are
amended
as
follows:

PART
52
­
[
AMENDED]

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

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

Subpart
VV 
Virginia
2.
In
Section
52.2420,
the
table
in
paragraph
(
e)
is
amended
by
adding
an
entry
for
the
8­
Hour
Ozone
Maintenance
Plan,
Madison
&
Page
Cos.
(
Shenandoah
NP),
VA
Area
at
the
end
of
the
table
to
read
as
follows:

§
52.2420
Identification
of
plan.

*
*
*
*
*

(
e)***

Name
of
nonregulatory
SIP
revision
Applicable
geographic
area
State
submittal
date
EPA
approval
date
Additional
explanation
*
*
*
*
*
*
*

8­
Hour
Ozone
Maintenance
Plan
for
the
Madison
&
Page
Cos.
(
Shenandoah
NP),
VA
Area
Madison
County
(
part)
and
Page
County
(
part)
9/
23/
05
[
Insert
Federal
Register
publication
date]
[
Insert
page
number
where
the
document
begins]
11
PART
81
­
[
AMENDED]

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

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

2.
Section
81.347
is
amended
by
revising
the
ozone
table
entry
for
the
Madison
&
Page
Cos.
(
Shenandoah
NP),
VA
Area
to
read
as
follows:

§
81.347
Virginia
*
*
*
*
*

Virginia
­
Ozone
(
8­
Hour
Standard)

Designated
Area
Designation
Classification
Date1
Type
Date1
Type
*
*
*
*
*
*
*

Madison
&
Page
Cos.
(
Shenandoah
NP),
VA
Area
Madison
County
(
part)
[
Insert
date
of
publication]
Attainment
Page
County
(
part)
[
Insert
date
of
publication]
Attainment
*
*
*
*
*
*

1
This
date
is
June
15,
2004,
unless
otherwise
noted.

*
*
*
*
*
