	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

	[EPA-R03-OAR-2008-0073; FRL-        ] 

Approval and Promulgation of Air Quality Implementation Plans; Virginia;
Amendments to Ambient Air Quality Standards for Particulate Matter 

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Proposed rule.

SUMMARY:  EPA is proposing to approve a State Implementation Plan (SIP)
revision submitted by the Commonwealth of Virginia.  This revision
consists of amendments to the Commonwealth of Virginia’s ambient air
quality standards for particulate matter.  This action is being taken
under the Clean Air Act (CAA). 

DATES: Written comments must be received on or before [insert date 30
days from date of publication].  

ADDRESSES:  Submit your comments, identified by Docket ID Number
EPA-R03-OAR-2008-0073 by one of the following methods:

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

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

     C.    Mail:   EPA-R03-OAR-2008-0073, Cristina Fernandez, Chief, Air
Quality Planning, 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-2008-0073.  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: Gobeail McKinley, (215) 814-2033, or by
e-mail at   HYPERLINK "mckinley.gobeail@epa.gov" 
mckinley.gobeail@epa.gov .

SUPPLEMENTARY INFORMATION:  On January 7, 2008, the Commonwealth of
Virginia submitted a formal revision to its State Implementation Plan. 
The SIP revision consists of amendments to the Commonwealth’s existing
ambient air quality standards in 9 VAC 5 Chapter 30. 

I.    Background 

Effective on September 16, 1997, EPA established two new standards for
fine particulate matter (PM2.5) that applies to particles 2.5
micrometers in diameter or less (62 FR 38652).  The two new PM2.5
standards were set at 15 micrograms per cubic meter (µg/m3), based on
the 3-year average of annual arithmetic mean PM2.5 concentrations from
single or multiple community-oriented monitors, and 65 µg/m3, based on
the 3-year average of the 98th percentile of 24-hour PM2.5
concentrations at each population-oriented monitor within an area. 
Effective on December 18, 2006, EPA revised the level of the 24-hour
PM2.5 standard to 35 µg/m3, retained the level of the annual PM2.5
standard at 15 µg/m3, retained the 24-hour PM10 standard at 150 µg/m3,
and revoked the annual PM10 standard (71 FR 61144).  

II.   Summary of SIP Revision

The Commonwealth’s SIP revision to the Virginia Regulations for the
Control and

Abatement of Air Pollution: 9 VAC 5 Chapter 30 - Ambient Air Quality
Standards incorporates the annual and 24-hour PM2.5 national ambient air
quality standards (NAAQS) that were established by the EPA on July 18,
1997 (62 FR 38652) and on October 17, 2006 (71 FR 61144).  The revision
is consistent with the national ambient air quality standards set out in
40 CFR Part 50.  The SIP revision amends the Commonwealth’s PM2.5
standard to add the new 24-hour standard of 35 µg/m3, retains the
current 24-hour standard of 65 µg/m3 during the transition to the new
standard, adds transitional language to clarify implementation of these
standards, and removes obsolete language referencing the annual PM10
standard.  The SIP revision also adds new reference conditions to make
the state regulation consistent with 40 CFR Part 50.

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.

III.   Proposed Action

EPA is proposing to approve the Virginia SIP revision for amendments to
the existing air quality standards, 9 VAC 5 Chapter 30.  The
Commonwealth’s SIP revision (9 VAC 5-30-65) includes an incorrect
reference of the Federal Register document for the annual and 24-hour
PM2.5 NAAQS that were established by the EPA on July 18, 1997 (62 FR
38652).  EPA will not promulgate a final approval rule until the
Commonwealth of Virginia submits a correction to 9 VAC 5 Chapter 30. 
EPA is soliciting public comments on the issues discussed in this
document.  These comments will be considered before taking final action.


IV. Statutory and Executive Order Reviews   

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 proposes to approve state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law.  For that reason, this proposed 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 proposed rule, amending ambient air quality standards
for particulate matter in the Commonwealth of Virginia, 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.

List of Subjects in 40 CFR Part 52  

Environmental protection, Air pollution control, Nitrogen dioxide,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
oxides.



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

___November 6, 2008_________           ______________/s/______________

Dated:                                                      Donald S.
Welsh,

                                                                
Regional Administrator,

                                                                 Region
III.

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