	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

	[EPA-R03-OAR-2007-1149; FRL-       ]

	Approval and Promulgation of Air Quality Implementation Plans;

	Virginia; Fredericksburg and Shenandoah National Park 8-Hour Ozone
Areas Movement from the Nonattainment Area List to the Maintenance Area
List  

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) that was submitted on August
14, 2007 by the Commonwealth of Virginia.  The revisions move the
Fredericksburg and the Shenandoah National Park 8-Hour Ozone Areas from
the Nonattainment Area list to the Maintenance Area list. EPA is
approving these revisions to move the Fredericksburg 8-Hour Ozone
Nonattainment Area (Spotsylvania County, Stafford County, and
Fredericksburg City) and the Shenandoah National Park 8-Hour Ozone
Nonattainment Area (portions of the park located in Page and Madison
Counties) from the list of nonattainment areas to the list of
maintenance areas in accordance with the requirements of the Clean Air
Act (CAA).

             

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-

2007-1149 by one of the following methods:

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

     B.    E-mail: fernandez.cristina@epa.gov

     C.    Mail:   EPA- R03-OAR-2007-1149, Cristina Fernandez, Chief,
Air Quality Planning 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-2007-1149.  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: Melissa Linden, (215) 814-2096, or by
e-mail at linden.melissa@epa.gov. 

SUPPLEMENTARY INFORMATION:  

Background



On September 22, 2004, under the 8-Hour Ozone National Ambient Air
Quality Standard (NAAQS) the Fredericksburg area and the Shenandoah
National Park area were designated as nonattainment areas. The
Shenandoah National Park area formally submitted a redesignation request
on September 21, 2005 along with a maintenance plan on September 23,
2005. On January 3, 2006, (71 FR 24) the U.S. Environmental Protection
Agency (EPA) published the final rulemaking actions approving the
redesignation of the Shenandoah National Park from nonattainment of the
8-Hour Ozone Standard to attainment. The Fredericksburg area formally
submitted a redesignation request on May 2, 2005 along with a
maintenance plan on May 4, 2005. On December 23, 2005, (70 FR 76165) the
U.S. Environmental Protection Agency (EPA) published the final
rulemaking actions approving the redesignation of the Fredericksburg
area from nonattainment of the 8-Hour Ozone Standard to attainment. Both
redesignations were done in accordance with the Clean Air Act section
107(d)(3)(E). 

Summary of SIP Revision

On August 14, 2007, the Commonwealth of Virginia submitted a formal
revision to its State Implementation Plan (SIP).  The SIP revision
consists of a regulatory change that moves the Fredericksburg 8-Hour
Ozone Nonattainment Area and the Shenandoah National Park 8-Hour Ozone
Nonattainment Area from the list of nonattainment areas to the list of
maintenance areas.

The purpose of Virginia’s State Implementation Plan revision consists
of a regulatory change to move the Fredericksburg 8-Hour Ozone
Nonattainment Area (Spotsylvania County, Stafford County, and
Fredericksburg City) and the Shenandoah National Park 8-Hour Ozone
Nonattainment Area (portions of the park located in Page and Madison
Counties) from the list of nonattainment areas found in regulation 9 VAC
5-20-204 to the list of maintenance areas found in regulation 9 VAC
5-20-203.

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 CAA is likewise unaffected by this, or any, state
audit privilege or immunity law.

IV.	Final Action

EPA is approving the Commonwealth’s request to move the Fredericksburg
area and the Shenandoah National Park area from 8-Hour Ozone
Nonattainment list to the 8-Hour Ozone Maintenance list.

EPA is publishing this rule without prior proposal because the Agency
views this as a noncontroversial amendment and anticipates no adverse
comment. 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.  Please note
that if EPA receives adverse comment on an amendment, paragraph, or
section of this rule and if that provision may be severed from the
remainder of the rule, EPA may adopt as final those provisions of the
rule that are not the subject of an adverse comment.

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 CAA.  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
approves a state rule implementing a Federal standard. 

In reviewing SIP submissions, EPA(s role is to approve state choices,
provided that they meet the criteria of the CAA.  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 CAA.  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 CAA, 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. 
This action to approve the revision to move the Fredericksburg area and
the Shenandoah National Park area from the 8-Hour Ozone Nonattainment
list to the 8-Hour Ozone Maintenance list 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 oxides, Ozone, Recordkeeping and reporting
requirements, Volatile organic compounds

                                                                        
                            /s/

__December 27, 2007_                   		         
__________________________

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 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
entries for Chapter 20, section 5-20-203 and 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

*     *     *     *     *    *     *

5-20-203

	Air Quality Maintenance Areas

	09/01/06

	[Insert Federal Register publication date] [Insert page number where
the document begins]	Fredericksburg and Shenandoah 8-Hour Ozone Areas
are added

5-20-204	Nonattainment Areas	09/01/06	[Insert Federal Register
publication date] [Insert page number where the document begins]
Fredericksburg and Shenandoah 8-Hour Ozone Areas are deleted

*     *     *     *     *    *     *



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