  	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

	[EPA-R03-OAR-2006-0648; FRL-       ]

	Approval and Promulgation of Air Quality Implementation Plans;

	Virginia; Identification of the Northern Virginia PM2.5 Nonattainment
Area

AGENCY:  Environmental Protection Agency (EPA).

ACTION:   Direct final rule.

SUMMARY:   EPA is taking direct final action to approve revisions to the
Virginia State Implementation Plan (SIP).  The revision consists of the
addition of counties in Northern Virginia which were designated as
nonattainment for the fine particulate (PM2.5) national ambient air
quality standard (NAAQS).  EPA is approving this revision in accordance
with the requirements of the Clean Air Act.

             

DATES:  This rule is effective on [Insert date 60 days after publication
in the Federal Register]  without further notice, unless EPA receives
adverse written comment by [Insert date 30 days after publication in the
Federal Register].  If  EPA receives such comments, it will publish a
timely withdrawal of the direct final rule in the Federal Register and
inform the public that the rule will not take effect.

ADDRESSES:  Submit your comments, identified by Docket ID Number
EPA-R03-OAR-2006-0648 by one of the following methods:

  www.regulations.gov.  Follow the on-line instructions for submitting
comments.

     B.    E-mail:  miller.linda@epa.gov

     C.    Mail:  EPA-R03-OAR-2006-0648, Linda Miller, Acting Chief,
Air Quality Planning and Analysis Branch, Mailcode 3AP21, U.S.
Environmental Protection Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103.

     D.   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 Docket ID No
EPA-R03-OAR-2006-0648.  EPA's policy is that all comments received will
be included in the public docket without change, and may be made
available online at www.regulations.gov, 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 www.regulations.gov or
e-mail.  The www.regulations.gov website is 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 
www.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
www.regulations.gov index. 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 www.regulations.gov 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:  Linda Miller, (215) 814-2068, or by
e-mail 

at miller.linda@epa.gov. 

SUPPLEMENTARY INFORMATION:  

I.	Background

On May 8, 2006, the Commonwealth of Virginia submitted a formal
revision to its State Implementation Plan (SIP).  The SIP revision
consists of the addition of counties in the Northern Virginia PM2.5
nonattainment area to the air quality regulations in the Virginia Code
(9 VAC 5-20-204).  This section of the Virginia regulations identifies
areas included in nonattainment areas for the National Ambient Air
Quality Standards (NAAQS).    

On July 18, 1997, EPA revised the NAAQS for particulate matter to add a
new standard for fine particulates (PM2.5), airborne particles with a
nominal aerodynamic diameter of 2.5 micrometers or less.  The
health-based standards for air quality are the PM2.5 annual NAAQS, 15
micrograms per cubic meter, based on a 3-year average of annual mean
PM2.5 concentrations;  and the 24-hour NAAQS. 65 micrograms per cubic
meter based on a 3-year average of the 98th percentile of 24-hour
concentrations.  Nonattainment areas for the fine particle standard
(PM2.5) were promulgated by EPA on January 5, 2005 as required by
section 197(d) of the Clean Air Act (CAA). Additional information on the
designation process and requirements for nonattainment areas is found in
the Federal Register document for the designations (70 FR 944 and 71 FR
19844).  The designation of these counties and local jurisdictions in a
PM2.5 nonattainment area is not the subject of this rulemaking.   

  

Summary of SIP Revision

The Commonwealth of Virginia is amending 9 VAC 5-20-204.A.3 to include
the previously designated counties and local jurisdictions into the
Northern Virginia portion of the Washington, DC PM2.5 nonattainment
area.  The counties and local areas included in the nonattainment area
are Arlington County, Fairfax County, Loudon County, Prince William,
Alexandria city, Fairfax City, Falls Church City, Manassas City, and
Manassas Park City.  This SIP revision approves the addition of these
counties and local jurisdictions to the planning areas listed in the
Virginia Code (9 VAC 5-20-204A3).  

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 (
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.

IV.	Final Action

EPA is approving the revision (VA D05) which identifies areas designated
as part of the Northern Virginia portion of the Washington, DC PM2.5
nonattainment area.  EPA is publishing this rule without prior proposal
because the Agency views this as a noncontroversial amendment and
anticipates no adverse comment.  The designation process included
opportunity for public comment.  In addition, there were no public
comments in the State public participation process.  However, in the
(Proposed Rules( section of today(s Federal Register, EPA is publishing
a separate document that will serve as the proposal to approve the SIP
revision if adverse comments are filed.  This rule will be effective on
[Insert date 60 days from date of publication in the Federal Register]
without further notice unless EPA receives adverse comment by [Insert
date 30 days from date of publication in the Federal Register].  If EPA
receives adverse comment, EPA will publish a timely withdrawal in the
Federal Register informing the public that the rule will not take
effect.  EPA will address all public comments in a subsequent final rule
based on the proposed rule.  EPA will not institute a second comment
period on this action.  Any parties interested in commenting must do so
at this time.  

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
(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 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 to update the Virginia regulations to include counties and local
jurisdictions in the Northern Virginia PM2.5 nonattainment area 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 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, Particulate matter.

_________________                   		         
__________/s/________________

Dated:  December 22, 2006  				Donald S. Welsh,

                                      				Regional Administrator,

                                      				Region III.

40 CFR Part 52 is amended as follows: 

PART 52 - [AMENDED] 

1.  The authority citation for 40 CFR 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 revising the
entry for Chapter 20, Part II, Section 5-20-204 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 20	General Provisions

*     *     *     *     *    *     *



Part II	

Air Quality Programs

*     *     *     *     *    *     *

5-20-204	Nonattainment Areas	5/4/05	[Insert Federal Register publication
date] [Insert page number where the document begins]	Paragraph
5-20-204A.3 is added

*     *     *     *     *    *     *



*    *     *     *      *

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