	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

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

	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).

ACTION:     Direct Final Rule.

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 [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-2008-0656 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-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 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:  Patrick Egan, (215) 814-3167, or by
e-mail at egan.patrick@epa.gov. 

SUPPLEMENTARY INFORMATION:  

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.

  

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
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 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 [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 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 

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.

                                                                        
                          

__October 20, 2008____                 		         
___________/s/_______________

Dated:                                				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
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

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Part II	

Air Quality Programs

*     *     *     *     *    *     *

5-20-203

	Air Quality Maintenance Areas

	

7/29/08	[Insert Federal Register publication date] [Insert page number
where the document begins]	Richmond and Hampton Roads 8-Hour Ozone Areas
are added

5-20-204	Nonattainment Areas	7/29/08	[Insert Federal Register
publication date] [Insert page number where the document begins]
Richmond and Hampton Roads 8-Hour Ozone Areas are deleted

*     *     *     *     *    *     *



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