 	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

	[EPA-R03-OAR-2007-1068; FRL-        ]

	Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Section 110(a)(1) 8-Hour Ozone Maintenance Plan for the White
Top Mountain, Smyth County, Virginia 1-Hour Ozone Nonattainment Area

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 a
10-year maintenance plan for the White Top Mountain 1-hour ozone
nonattainment area located in Smyth County, Virginia.  This action is
being taken under the Clean Air Act (CAA).  

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 EPA- R03-OAR-2007-1068.  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:  Irene Shandruk, (215) 814-2166, or by
e-mail at   HYPERLINK "mailto:shandruk.irene@epa.gov" 
shandruk.irene@epa.gov .

SUPPLEMENTARY INFORMATION:  

I.  Background

Section 110(a)(1) of the CAA requires that states submit to EPA plans to
maintain the NAAQS promulgated by EPA.  EPA interprets this provision to
require that areas that were maintenance areas for the 1-hour ozone
NAAQS, but attainment for the 8-hour ozone NAAQS, submit a plan to
demonstrate the continued maintenance of the 8-hour ozone NAAQS.  

On May 20, 2005, EPA issued guidance that applies to areas that are
designated unclassifiable/attainment for the 8-hour ozone standard.  The
purpose of this guidance is to address the maintenance requirements in
section 110(a)(1) of the CAA, and to assist the states in the
development of a SIP.  The components from EPA’s guidance include: 
(1) An attainment emissions inventory, which is based on actual
“typical summer day” emissions of volatile organic compounds (VOCs)
and nitrogen oxides (NOx) for the 10-year maintenance period, from a
base-year chosen by the state; (2) a maintenance demonstration, which
demonstrates how the area will remain in compliance with the 8-hour
ozone standard for a period of 10 years following the effective date of
designation unclassifiable/attainment (June 15, 2004); (3) an ambient
air monitoring network, which will be in continuous operation in
accordance with 40 CFR Part 58 to verify maintenance of the 8-hour ozone
standard; (4) a contingency plan, that will ensure that in the event of
a violation of the 8-hour ozone NAAQS, measures will be implemented as
promptly as possible; (5) a verification of continued attainment,
indicating how the state intends on tracking the progress of the
maintenance plan.

On February 26, 2008 (73 FR 10201), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Virginia.  The NPR proposed
approval of a 10-year maintenance plan for the White Top Mountain 1-hour
ozone nonattainment area located in Smyth County, Virginia.  The formal
SIP revision was submitted by the Commonwealth of Virginia on August 6,
2007.

Other specific requirements of the 10-year maintenance plan under
section 110(a)(1) for the White Top Mountain 1-hour ozone nonattainment
area located in Smyth County, Virginia 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.  Summary of SIP Revision

Virginia has requested approval of a revision consisting of a 10-year
maintenance plan under section 110(a)(1) for the White Top Mountain
1-hour ozone nonattainment area located in Smyth County, Virginia.  The
Virginia Department of Environmental Quality (VADEQ) 8-hour ozone
maintenance plan addresses the five components of EPA’s May 20, 2005
Guidance, which pertains to the maintenance requirements in section
110(a)(1) of the CAA.    

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 (
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 CAA,
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's review of this revision indicates that the Commonwealth of
Virginia has addressed the components of a maintenance plan pursuant to
EPA’s May 20, 2005 guidance, and meets the requirements of section
110(a)(1) of the CAA.  EPA is approving the Virginia SIP revision for
White Top Mountain, Smyth County, Virginia, which was submitted on
August 6, 2007.

V.   Statutory and Executive Order Reviews 

A.   General Requirements 

Under the Clean Air Act, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations.  42 U.S.C. 7410(k); 40 CFR 52.02(a).  Thus, in
reviewing SIP submissions, EPA’s role is to approve state choices,
provided that they meet the criteria of the Clean Air Act.  Accordingly,
this action merely approves state law as meeting Federal requirements
and does not impose additional requirements beyond those imposed by
state law.  For that reason, this action:

is not a "significant regulatory action” subject to review by the
Office of Management and Budget under Executive Order 12866 (58 FR
51735, October 4, 1993);  

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

is certified as not having a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.);  

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);

does not have Federalism implications as specified in Executive Order
13132 (64 FR 43255, August 10, 1999);

is not an economically significant regulatory action based on health or
safety risks subject to Executive Order 13045 (62 FR 19885, April 23,
1997); 

is not a significant regulatory action subject to Executive Order 13211
(66 FR 28355, May 22, 2001); 

is not subject to requirements of Section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note)
because application of those requirements would be inconsistent with the
Clean Air Act; and 

does not provide EPA with the discretionary authority to address, as
appropriate, disproportionate human health or environmental effects,
using practicable and legally permissible methods, under Executive Order
12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP
is not approved to apply in Indian country located in the state, and EPA
notes that it will not impose substantial direct costs on tribal
governments or preempt tribal law.

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 action 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.  A major rule cannot
take effect until 60 days after it is published in the Federal Register.
 This action 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 action 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 approving Virginia’s SIP revision request consisting of a
10-year maintenance plan under section 110(a)(1) for the White Top
Mountain 1-hour ozone nonattainment area located in Smyth County,
Virginia 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, Incorporation by
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.

______April 15, 2008_____________          	
____________/s/_________________

Dated:                                                      		William T.
Wisniewski, Acting

                                                                 	
Regional Administrator,

                                                                 	
Region III.

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 XX - Virginia

2.  In Section 52.2420, the table in paragraph (e) is amended by adding
an entry for the 8-hour Ozone Maintenance plan for the White Top
Mountain, Smyth County, VA 1-hour Ozone Nonattainment Area at the end of
the table to read as follows:

( 52.2520  		Identification of plan.

*		*		*		*		*

(e)* * *

Name of non-regulatory SIP revision	

Applicable geographic area	

State submittal date	

EPA approval date	

Additional 

explanation



*                    *                      *                   *       
           *                 *                    *



Ozone Maintenance Plan	

White Top Mountain, Smyth County, VA 1-hour Ozone Nonattainment Area	

8/6/07	

[Insert Federal Register page number where the document begins and date]






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