
[Federal Register: October 29, 2008 (Volume 73, Number 210)]
[Rules and Regulations]               
[Page 64210-64213]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29oc08-13]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2008-0656; FRL-8735-4]

 
Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Movement of Richmond and Hampton Roads 8-Hour Ozone Areas 
From the Nonattainment Area List to the Maintenance Area List

AGENCY: Environmental Protection Agency (EPA).

[[Page 64211]]


ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve a revision to the 
Virginia State Implementation Plan (SIP). This revision moves the 
Richmond and Hampton Roads 8-Hour Ozone Nonattainment Areas from the 
nonattainment areas list to the maintenance areas list. EPA is 
approving this revision to move the Richmond and Hampton Roads 8-Hour 
Ozone Nonattainment Areas 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 December 29, 2008 without further 
notice, unless EPA receives adverse written comment by November 28, 
2008. 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-2008-0656 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: fernandez.cristina@epa.gov.
    C. Mail: EPA-R03-OAR-2008-0656, 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-
2008-0656. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at http://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 http://
www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
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 http://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 
http://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 http://
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: Patrick Egan, (215) 814-3167, or by e-
mail at egan.patrick@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    On April 15, 2004, the Richmond and the Hampton Roads Areas were 
designated as nonattainment areas for the 8-Hour Ozone National Ambient 
Air Quality Standards (NAAQS). On September 20, 2006, Virginia 
Department of Environmental Quality (VADEQ) formally submitted a 
redesignation request for the Richmond Area along with a maintenance 
plan on September 25, 2006. On October 16, 2006, VADEQ formally 
submitted a redesignation request for the Hampton Roads Area, along 
with a maintenance plan on October 18, 2006. On June 1, 2007, (72 FR 
30485 & 72 FR 30490) EPA published final rulemaking actions approving 
the redesignation request and maintenance plan for the Richmond and 
Hampton Roads Areas. On July 6, 2007, (72 FR 32895), EPA published a 
correction notice for the June 1, 2007 (72 FR 30490) Federal Register 
correcting the omission of York County as part of the Hampton Roads 
redesignation.

II. Summary of SIP Revision

    On July 29, 2008, the Commonwealth of Virginia submitted a formal 
revision to its SIP. The SIP revision consists of a regulatory change 
that moves the Richmond Area 8-Hour Ozone Nonattainment Area (Counties 
of Charles City, Chesterfield, Hanover, Henrico, and Prince George; 
Cities of Colonial Heights, Hopewell, Petersburg, and Richmond) and the 
Hampton Roads 8-Hour Ozone Nonattainment Area (Counties of Gloucester, 
Isle of Wight, James City and York; Cities of Chesapeake, Hampton, 
Newport News, Portsmouth, Poquson, Norfolk, Suffolk, Virginia Beach and 
Williamsburg) 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

[[Page 64212]]

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 Sec.  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 revision to move the Richmond 
and Hampton Roads 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 December 29, 
2008 without further notice unless EPA receives adverse comment by 
November 28, 2008. 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 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 (Pub. L. 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 December 29, 2008. 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

[[Page 64213]]

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 Richmond Area and the Hampton Roads 
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 dioxide, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: October 20, 2008.
Donald S. Welsh,
Regional Administrator, Region III.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
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

0
2. In Sec.  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:


Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

                                 EPA-Approved Virginia Regulations and Statutes
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                                                                                                  Explanation
   State citation (9 VAC 5)           Title/subject            State       EPA approval date      [former SIP
                                                          effective date                           citation]
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                                          Chapter 20 General Provisions
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                                          Part II Air Quality Programs
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5-20-203......................  Air Quality Maintenance          7/29/08  10/29/08 [Insert    Richmond and
                                 Areas.                                    page number where   Hampton Roads 8-
                                                                           the document        Hour Ozone Areas
                                                                           begins].            are added.
5-20-204......................  Nonattainment Areas.....         7/29/08  10/29/08 [Insert    Richmond and
                                                                           page number where   Hampton Roads 8-
                                                                           the document        Hour Ozone Areas
                                                                           begins].            are deleted.

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 [FR Doc. E8-25673 Filed 10-28-08; 8:45 am]

BILLING CODE 6560-50-P
