

[Federal Register: July 13, 2006 (Volume 71, Number 134)]
[Rules and Regulations]               
[Page 39570-39572]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13jy06-21]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2005-VA-0015; FRL-8196-8]

 
Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; NSR in the Ozone Transport Region

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the Commonwealth of Virginia. This revision establishes 
and requires major new and major modified sources of volatile organic 
compounds (VOCs) or nitrogen oxides (NOX) to meet certain 
nonattainment New Source Review (NSR) requirements if they are located 
(or are proposing to locate) in Virginia's portion of the Ozone 
Transport Region (OTR). The intended effect of this action is the 
approval of a State Implementation Plan (SIP) revision submitted by the 
Commonwealth of Virginia for NSR in the OTR.

DATES: Effective Date: This final rule is effective on August 14, 2006.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2005-VA-0015. 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: Sharon McCauley, (215) 814-3376 or by 
e-mail at mccauley.sharon@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    On January 6, 2006 (71 FR 890), EPA published a notice of proposed 
rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed 
approval of nonattainment NSR in the OTR. The formal SIP revision was 
submitted by Virginia on March 28, 2005. The applicable regulations 
requiring implementation of nonattainment NSR in the Virginia portion 
of the OTR were adopted by the Virginia State Air Pollution Control 
Board on September 29, 2004.
    The Clean Air Act requires 13 states including the District of 
Columbia to submit revisions to their State Implementation Plans that 
will require major new and modified sources of VOCs or NOX 
to meet certain NSR requirements if they are located (or planning to 
locate) in the OTR.The OTR consists of the states of Connecticut, 
Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, 
New York, Pennsylvania, Rhode Island, Vermont and the Consolidated 
Metropolitan Statistical Area that includes the District of Columbia 
and portions of Virginia.
    The areas designated as in the Virginia portion of the OTR are as 
follows: Arlington County, Fairfax County, Loudoun County, Prince 
William County, Strafford County, Alexandria City, Fairfax City, Falls 
Church City, Manassas City, and Manassas Park City.

II. Summary of SIP Revision

    The Commonwealth of Virginia amended its regulations to clarify 
that areas located in the Virginia portion of the OTR must meet the 
requirements of Virginia Code Article 9 VAC 5 Chapter 80 (Permits for 
Major Stationary Sources and Major Modifications Locating in 
Nonattainment Areas) as if they were classified as moderate 
nonattainment for ozone, except that the threshold for major stationary 
sources of VOCs would be 50 tons instead of 100 tons. The changes that 
are approved in this SIP revision are those that identify and define 
the OTR locations in Virginia while providing direction to what State 
regulations sources will need to follow when they are either planning 
to locate in or are already located in the Virginia portion of the OTR. 
Changes were made to the State provisions at 9 VAC 5-80-2000, 
Applicability and 9 VAC 5-80-2010, Definitions.
    Sources in the Virginia portion of the OTR are also required to 
meet offset requirements in 9 VAC 5-80-2120 B 2 for areas classified as 
moderate nonattainment for ozone. These provisions require all 
increases of VOC and/or NOX emissions attributable to the 
new or modified source to be offset with emission reductions elsewhere 
in the Virginia portion of the OTR at a ratio of 1.15 to 1.00.
    This approved SIP revision amends the SIP to add new regulatory 
language indicating that sources in the Virginia portion of the OTR are 
subject to the requirements of 9 VAC 5-80-2000, et seq. regardless of 
the nonattainment status of the area where the source is located. This 
SIP revision also provides that sources located or planning to locate 
in areas within the OTR that are classified as ``serious'' or 
``severe'' nonattainment areas are required to meet the respective 
emission thresholds listed within the State's definition of a ``major 
stationary source'' at 9 VAC 5-80-2010 C Section a (1) and (2) and the 
more restrictive offset requirements located in 9 VAC 5-80-2120 B 3 and 
B 4, respectively.

[[Page 39571]]

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

    In 1995, Virginia adopted legislation that provides, subject to 
certain conditions, for an environmental assessment (audit) 
``privilege'' for voluntary compliance evaluations performed by a 
regulated entity. The legislation further addresses the relative burden 
of proof for parties either asserting the privilege or seeking 
disclosure of documents for which the privilege is claimed. Virginia's 
legislation also provides, subject to certain conditions, for a penalty 
waiver for violations of environmental laws when a regulated entity 
discovers such violations pursuant to a voluntary compliance evaluation 
and voluntarily discloses such violations to the Commonwealth and takes 
prompt and appropriate measures to remedy the violations. Virginia's 
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and 
information about the content of those documents that are the product 
of a voluntary environmental assessment. The Privilege Law does not 
extend to documents or information (1) that are generated or developed 
before the commencement of a voluntary environmental assessment; (2) 
that are prepared independently of the assessment process; (3) that 
demonstrate a clear, imminent and substantial danger to the public 
health or environment; or (4) that are required by law. On January 12, 
1998, the Commonwealth of Virginia Office of the Attorney General 
provided a legal opinion that states that the Privilege law, Va. Code 
Sec. 10.1-1198, precludes granting a privilege to documents and 
information ``required by law,'' including documents and information 
``required by Federal law to maintain program delegation, authorization 
or approval,'' since Virginia must ``enforce Federally authorized 
environmental programs in a manner that is no less stringent than their 
Federal counterparts * * *'' The opinion concludes that ``[r]egarding 
Sec.  10.1-1198, therefore, documents or other information needed for 
civil or criminal enforcement under one of these programs could not be 
privileged because such documents and information are essential to 
pursuing enforcement in a manner required by Federal law to maintain 
program delegation, authorization or approval.''
    Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that 
``[t]o the extent consistent with requirements imposed by Federal 
law,'' any person making a voluntary disclosure of information to a 
state agency regarding a violation of an environmental statute, 
regulation, permit, or administrative order is granted immunity from 
administrative or civil penalty. The Attorney General's January 12, 
1998 opinion states that the quoted language renders this statute 
inapplicable to enforcement of any Federally authorized programs, since 
``no immunity could be afforded from administrative, civil, or criminal 
penalties because granting such immunity would not be consistent with 
Federal law, which is one of the criteria for immunity.'' Therefore, 
EPA has determined that Virginia's Privilege and Immunity statutes will 
not preclude the Commonwealth from enforcing its NSR 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.
    Other specific requirements of NSR in the Virginia Ozone Transport 
Region 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.

IV. Final Action

    EPA is approving NSR in the Ozone Transport Region as a revision to 
the Virginia SIP.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not 
have tribal implications because it will not have a substantial direct 
effect on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes, 
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). 
This action also does not have Federalism implications because it does 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). 
This action merely approves a state rule implementing a Federal 
requirement, and does not alter the relationship or the distribution of 
power and responsibilities established in the Clean Air Act. This rule 
also is not subject to Executive Order 13045 ``Protection of Children 
from Environmental Health Risks and Safety Risks'' (62 FR 19885, April 
23, 1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

[[Page 39572]]

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 September 11, 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 NSR in the Virginia portion of 
the Ozone Transport Region may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Dated: July 6, 2006.
William T. Wisniewski,
Acting Regional Administrator, Region III.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

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

Subpart VV--Virginia

0
2. In Sec.  52.2420, the table in paragraph (c) is amended by revising 
the entries for Chapter 80, Article 9, Sections 5-80-2000 and 5-80-2010 
to read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

                                 EPA-Approved Virginia Regulations and Statutes
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                                                       State                                        Explanation
  State citation  (9 VAC 5)       Title/subject      effective           EPA approval date          [former SIP
                                                        date                                         citation]
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                                                  * * * * * * *
                             Chapter 80 Permits for Stationary Sources [Part VIII]

                                                  * * * * * * *
              Article 9 Permits for Major Stationary Sources and Modifications--Nonattainment Areas
----------------------------------------------------------------------------------------------------------------
5-80-2000...................  Applicability.......      9/29/04  7/13/06 [Insert page number
                                                                  where the document begins]
5-80-2010...................  Definitions.........      9/29/04  7/13/06 [Insert page number
                                                                  where the document begins]

                                                  * * * * * * *
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[FR Doc. 06-6188 Filed 7-12-06; 8:45 am]

BILLING CODE 6560-50-P
