ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Part
52
[
EPA­
R03­
OAR­
2005­
VA­
0016;
FRL­
]

Approval
and
Promulgation
of
Air
Quality
Implementation
Plans;
Virginia;
Amendments
to
the
Ambient
Air
Quality
Standards
AGENCY:
Environmental
Protection
Agency
(
EPA).

ACTION:
Final
rule.

SUMMARY:
EPA
is
approving
a
State
Implementation
Plan
(
SIP)
revision
submitted
by
the
Commonwealth
of
Virginia.
This
revision
pertains
to
the
amendments
of
the
Commonwealth's
existing
ambient
air
quality
standards.
EPA
is
approving
this
SIP
revision
in
accordance
with
the
Clean
Air
Act
(
CAA
or
Act).

EFFECTIVE
DATE:
This
final
rule
is
effective
on
[
insert
date
30
days
from
date
of
publication].

ADDRESSES:
EPA
has
established
a
docket
for
this
action
under
Docket
ID
Number
EPAR03
OAR­
2005­
VA­
0016.
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
2
available
at
the
Virginia
Department
of
Environmental
Quality,
629
East
Main
Street,
Richmond,

Virginia
23219.

FOR
FURTHER
INFORMATION
CONTACT:
Rose
Quinto,
(
215)
814­
2182,
or
by
e­
mail
at
quinto.
rose@
epa.
gov.

SUPPLEMENTARY
INFORMATION:

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

II.
Summary
of
SIP
Revision
The
Commonwealth's
SIP
revision
incorporates
the
1997
national
ambient
air
quality
standards
(
NAAQS)
for
the
8­
hour
ozone
and
PM
2.5
into
the
Virginia
Regulations
for
the
Control
and
Abatement
of
Air
Pollution:
9
VAC
5
Chapter
30,
Ambient
Air
Quality
Standards.
The
other
SIP
revisions
incorporated
into
9
VAC
5
Chapter
30,
are
amendments
to
the
ambient
air
quality
standards
for
sulfur
dioxide,
carbon
monoxide,
ozone
(
1­
hour),
PM
10
,
nitrogen
dioxide,
and
lead
to
make
the
state
regulation
consistent
with
40
CFR
part
50.
3
Other
specific
requirements
of
Regulation
9
VAC
5
Chapter
30
and
the
rationale
for
EPA's
proposed
action
are
explained
in
the
NPR
and
will
not
be
restated
here.
No
public
comments
were
received
on
the
NPR.

III.
General
Information
Pertaining
to
SIP
Submittals
From
the
Commonwealth
of
Virginia
In
1995,
Virginia
adopted
legislation
that
provides,
subject
to
certain
conditions,
for
an
environmental
assessment
(
audit)
"
privilege"'
for
voluntary
compliance
evaluations
performed
by
a
regulated
entity.
The
legislation
further
addresses
the
relative
burden
of
proof
for
parties
either
asserting
the
privilege
or
seeking
disclosure
of
documents
for
which
the
privilege
is
claimed.

Virginia's
legislation
also
provides,
subject
to
certain
conditions,
for
a
penalty
waiver
for
violations
of
environmental
laws
when
a
regulated
entity
discovers
such
violations
pursuant
to
a
voluntary
compliance
evaluation
and
voluntarily
discloses
such
violations
to
the
Commonwealth
and
takes
prompt
and
appropriate
measures
to
remedy
the
violations.
Virginia's
Voluntary
Environmental
Assessment
Privilege
Law,
Va.
Code
Sec.
10.1­
1198,
provides
a
privilege
that
protects
from
disclosure
documents
and
information
about
the
content
of
those
documents
that
are
the
product
of
a
voluntary
environmental
assessment.
The
Privilege
Law
does
not
extend
to
documents
or
information
(
1)
that
are
generated
or
developed
before
the
commencement
of
a
voluntary
environmental
assessment;
(
2)
that
are
prepared
independently
of
the
assessment
process;
(
3)
that
demonstrate
a
clear,
imminent
and
substantial
danger
to
the
public
health
or
environment;
or
(
4)
that
are
required
by
law.
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
5
event,
because
EPA
has
also
determined
that
a
state
audit
privilege
and
immunity
law
can
affect
only
state
enforcement
and
cannot
have
any
impact
on
Federal
enforcement
authorities,
EPA
may
at
any
time
invoke
its
authority
under
the
Clean
Air
Act,
including,
for
example,
sections
113,

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

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

V.
Statutory
and
Executive
Order
Reviews
A.
General
Requirements
Under
Executive
Order
12866
(
58
FR
51735,
October
4,
1993),
this
action
is
not
a
"
significant
regulatory
action"
and
therefore
is
not
subject
to
review
by
the
Office
of
Management
and
Budget.
For
this
reason,
this
action
is
also
not
subject
to
Executive
Order
13211,
"
Actions
Concerning
Regulations
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use"
(
66
FR
28355,
May
22,
2001).
This
action
merely
approves
state
law
as
meeting
Federal
requirements
and
imposes
no
additional
requirements
beyond
those
imposed
by
state
law.
Accordingly,
the
Administrator
certifies
that
this
rule
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities
under
the
Regulatory
Flexibility
Act
(
5
U.
S.
C.
601
et
seq.).
Because
this
rule
approves
pre­
existing
requirements
under
state
law
and
does
not
impose
any
additional
6
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
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
7
National
Technology
Transfer
and
Advancement
Act
of
1995
(
15
U.
S.
C.
272
note)
do
not
apply.

This
rule
does
not
impose
an
information
collection
burden
under
the
provisions
of
the
Paperwork
Reduction
Act
of
1995
(
44
U.
S.
C.
3501
et
seq.).

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

C.
Petitions
for
Judicial
Review
Under
section
307(
b)(
1)
of
the
Clean
Air
Act,
petitions
for
judicial
review
of
this
action
must
be
filed
in
the
United
States
Court
of
Appeals
for
the
appropriate
circuit
by
[
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.
8
This
action
pertaining
to
the
amendments
of
Virginia's
ambient
air
quality
standards,
may
not
be
challenged
later
in
proceedings
to
enforce
its
requirements.
(
See
section
307(
b)(
2).)

List
of
Subjects
in
40
CFR
part
52
Environmental
protection,
Carbon
monoxide,
Nitrogen
dioxide,
Ozone,
Particulate
matter,
Sulfur
oxides,
Volatile
organic
compounds.

/
s/
_____________
___________________________
Dated:
February
22,
2006
William
Early,
Acting
Regional
Administrator,
Region
III.
9
40
CFR
part
52
is
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
§
52.2420,
the
table
in
paragraph
(
c)
is
amended
by
adding
and
revising
the
entries
for
Chapter
30
to
read
as
follows:

§
52.2420
Identification
of
plan.

*
*
*
*
*

(
c)
*
*
*

EPA­
APPROVED
VIRGINIA
REGULATIONS
AND
STATUTES
State
citation
(
9
VAC
5)
Title/
subject
State
effective
date
EPA
approval
date
Explanation
[
former
SIP
citation]

*
*
*
*
*
*
*

Chapter
30
Ambient
Air
Quality
Standards
[
Part
III]

5­
30­
10
General
9/
8/
04
[
Insert
Federal
Register
publication
date]
[
Insert
page
number
where
the
document
begins]

5­
30­
30
Sulfur
oxides
(
sulfur
dioxide)
9/
8/
04
[
Insert
Federal
Register
publication
date]
[
Insert
page
number
where
the
document
begins]
State
citation
(
9
VAC
5)
Title/
subject
State
effective
date
EPA
approval
date
Explanation
[
former
SIP
citation]

10
5­
30­
40
Carbon
Monoxide
9/
8/
04
[
Insert
Federal
Register
publication
date]
[
Insert
page
number
where
the
document
begins]

5­
30­
50
Ozone
(
1­
hour)
9/
8/
04
[
Insert
Federal
Register
publication
date]
[
Insert
page
number
where
the
document
begins]

5­
30­
55
Ozone
(
8­
hour)
9/
8/
04
[
Insert
Federal
Register
publication
date]
[
Insert
page
number
where
the
document
begins]
Added
Section
5­
30­
60
Particulate
Matter
(
PM
10
)
9/
8/
04
[
Insert
Federal
Register
publication
date]
[
Insert
page
number
where
the
document
begins]

5­
30­
65
Particulate
Matter
9/
8/
04
[
Insert
Federal
Register
publication
date]
[
Insert
page
number
where
the
document
begins]
Added
Section
5­
30­
70
Nitrogen
dioxide
9/
8/
04
[
Insert
Federal
Register
publication
date]
[
Insert
page
number
where
the
document
begins]

5­
30­
80
Lead
9/
8/
04
[
Insert
Federal
Register
publication
date]
[
Insert
page
number
where
the
document
begins]

*
*
*
*
*
*
*

*
*
*
*
*
