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CFR Citation: 40 CFR Part 52

DOCUMENT ID: [R03-OAR-2005-VA-0002; FRL-7904-9]

NOTICE: RULES

ACTION: Air quality implementation plans; approval and promulgation; various States:

DOCUMENT ACTION: Direct final rule.

SUBJECT CATEGORY: Approval and Promulgation of Air Quality Implementation Plans; Virginia; Revision Establishing the Western Virginia VOC and NOX Emissions Control Area, and Providing the Enabling Authority for NOX RACT Determinations in the Area

DATES: This rule is effective on June 27, 2005 without further notice, unless EPA receives adverse written comment by May 27, 2005. 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.

DOCUMENT SUMMARY: Environmental Protection Agency (EPA) is taking direct final action to approve a revision to the Commonwealth of Virginia State Implementation Plan (SIP) establishing a new volatile organic compound (VOC) and nitrogen oxide (NOX) emissions control area. This new area, entitled, the Western Virginia Emissions Control Area, consists of the City of Winchester and Frederick County, Roanoke County, Botetourt County, Roanoke City, and Salem City. EPA is also approving a revision to provide the enabling authority to implement NOX Reasonably Available Control Technology (RACT) in the affected areas. EPA is approving this revision in accordance with the requirements of the Clean Air Act (CAA).

SUMMARY: Virginia,

SUPPLEMENTAL INFORMATION

Prior to the final establishment of the 8hour ozone nonattainment areas, EPA developed a program to allow potential nonattainment areas to voluntarily adopt local emission control programs to avoid air quality violations and mandated nonattainment area controls. Areas with air quality meeting the onehour ozone standard were eligible to participate. In order to participate, state and local governments and EPA had to develop and sign an Early Action Compact (EAC) agreement with EPA. This agreement outlined the implementation procedures for the EAC program. As part of the EAC process, state and local communities are required to adopt and implement measures to reduce ozone precursor pollutants. In addition, the EAC program requires the preparation of an attainment demonstration.

Several localities in the Winchester and Roanoke areas of Virginia were eligible to participate in the EAC program. The areas that signed an EAC are the City of Winchester and Frederick County, which comprise the Northern Shenandoah Valley EAC, and the cities of Roanoke and Salem, and the counties of Roanoke and Botetourt, which comprise the Roanoke EAC.

In order to support this effort, the Commonwealth has elected to expand its preexisting list of emission control areas to include the EAC participating localities and to expand its NOX RACT regulation to the new emission control area.

II. Summary of SIP Revision

On December 22, 2004, and supplemented on February 24, 2005, the Commonwealth of Virginia submitted a formal revision to its SIP. The SIP revision amends the Virginia Code at 9 VAC 520206 to expand the VOC and NOX emission control areas to include the Western Virginia Emissions Control Area. This area includes the counties of Botetourt, Frederick, and Roanoke, and the cities of Roanoke, Salem, and Winchester. The revision also authorizes the implementation of NOX RACT in the Western Virginia Emissions Control Area.

This SIP revision also includes several amendments to various [[Page 21626]]
regulations in 9 VAC 540 which are intended to clarify certain provisions. A more detailed summary of the changes may be found in the technical support document (TSD) prepared for this rulemaking. 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. 10.11198, 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. 10.11198, 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. 10.11199, 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 Clean Air Act, 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 is approving a revision to the Commonwealth of Virginia SIP consisting of a regulation establishing the Western Virginia Emissions Control Area, and providing the enabling authority for NOX RACT determinations in the affected areas. The regulations are necessary in order to implement the control measures and achieve the emission reductions in the plans for the Roanoke and Northern Shenandoah Valley EAC areas.

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 June 27, 2005 without further notice unless EPA receives adverse comment by May 27, 2005. 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 preexisting 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 1044). 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
[[Page 21627]]
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 standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. 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 is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. 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 Clean Air Act. 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 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 June 27, 2005. Filing a petition for reconsideration by the Administrator of this final rule approving the expansion of the VOC emission standards to the Western Virginia Emissions Control Area, and providing the enabling authority for NOX RACT determinations in the affected areas, 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 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, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

Dated: April 19, 2005.
Donald S. Welsh,
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 VVVirginia
2. In Sec. 52.2420, the table in paragraph (c) is amended by revising the entries for Chapter 20 and Chapter 40 to read as follows: Sec. 52.2420 Identification of plan.
* * * * *
(c) EPA approved regulations and statutes.
EPAApproved Regulations and Statutes in the Virginia SIP State State citation (9 VAC 5) Title/subject effective EPA approval date Explanation [former date SIP citation] * * * * * * * Chapter 20 General Provisions (Part II) * * * * * * * 520206......................... Volatile Organic 3/24/04 4/27/05 [Insert page Compound and number where the Nitrogen Oxides document begins]. Emissions Control
Areas.
* * * * * * * Chapter 40 Existing Stationary Sources * * * * * * * Part II Emission Standards * * * * * * * Article 4 General Process Operations (Rule 44) 540240......................... Applicability and 3/24/04 4/27/05 [Insert page Designation of number where the Affected Facility. document begins]. [[Page 21628]]
* * * * * * * 540310AE...................... Standard for 3/24/04 4/27/05 [Insert page Nitrogen Oxides. number where the document begins]. * * * * * * * Article 37 Petroleum Liquid Storage and Transfer Operations (Rule 43) 5405200........................ Applicability and 3/24/04 4/27/05 [Insert page Designation of number where the Affected Facility. document begins]. * * * * * * * 5405220........................ Standard for 3/24/04 4/27/05 [Insert page Volatile Organic number where the Compounds. document begins]. * * * * *
[FR Doc. 058437 Filed 42605; 8:45 am]
BILLING CODE 656050P

FOR FURTHER INFORMATION CONTACT Ellen Wentworth, (215) 814-2034, or by email at wentworth.ellen@epa.gov.