FR Doc 05-9315

[Federal Register: May 12, 2005 (Volume 70, Number 91)]
[Rules and Regulations]
[Page 24987-24991]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12my05-13]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R03-OAR-2004-MD-0001; R03-OAR-2004-VA-0005; FRL-7909-9]

Approval and Promulgation of Air Quality Implementation Plans;
Maryland and Virginia; Non-Regulatory Voluntary Emission Reduction
Program Measures

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving State Implementation Plan (SIP) revisions
submitted by the State of Maryland and by the Commonwealth of Virginia.
These revisions establish a number of non-regulatory measures for which
Maryland and Virginia seek SIP credit in rate-of-progress and
attainment planning for the Metropolitan Washington, DC 1-hour ozone
nonattainment area (the Washington area). The intended effect of this
action is to approve SIP revisions submitted by Maryland and Virginia
which establish certain non-regulatory measures. The non-regulatory
measures include use of low-or-no-volatile organic compound (VOC)
content paints by certain State and local government agencies;
auxiliary power units on locomotives; sale of reformulated consumer
products in the Northern Virginia area; accelerated retirement of
portable fuel containers by certain State and local government
agencies; and, renewable energy measures (wind-power purchases by
certain local government agencies).

DATES: This final rule is effective on June 13, 2005.

ADDRESSES: EPA has established a docket for each of the SIP revisions
subject to this action under Regional Material in EDocket (RME) ID
Numbers R03-OAR-2004-MD-0001 and R03-OAR-2004-VA-0005. All documents in
the docket are listed in the RME index at http://www.docket.epa.gov/rmepub/.
Once in the system, select ``quick search,'' then key in the

appropriate RME identification number. Although listed in the
electronic docket, some information is not publicly available, i.e.,
confidential business information (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 RME or in hard copy
for public inspection 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 Maryland Department of the Environment,
1800 Washington Boulevard, Suite 705, Baltimore, Maryland 21230; and
the Virginia

[[Page 24988]]

Department of Environmental Quality, 629 East Main Street, Richmond,
Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Christopher Cripps, (215) 814-2179, or
by e-mail at cripps.christopher@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

On December 23, 2004 (69 FR 76889), EPA published a notice of
proposed rulemaking (NPR) for the State of Maryland and for the
Commonwealth of Virginia. The NPR proposed approval of non-regulatory
measures that include use of low-or-no-VOC content paints by certain
State and local government agencies; auxiliary power units on
locomotives; sale of reformulated consumer products in the Northern
Virginia area; accelerated retirement of portable fuel containers by
certain State and local government agencies; and, renewable energy
measures (wind-power purchases by certain local government agencies).
On February 19, 2004 and February 25, 2004, respectively, the Maryland
Department of the Environment (MDE) and the Virginia Department of
Environmental Quality (VA DEQ) each submitted the formal revisions to
their SIPs.

II. Summary of SIP Revision

The States submitted program descriptions that projected VOC and
nitrogen oxides (NOX) tons per day (TPD) emission reductions
attributable to each specific measure. Those estimates are provided in
Table 1.

Table 1.--Emission Reductions Creditable From Voluntary Emission Reduction Program Measures for the Metropolitan
Washington DC Area
----------------------------------------------------------------------------------------------------------------
Implementation
Measure State VOC TPD NOX TPD date
----------------------------------------------------------------------------------------------------------------
Gas Can Replacement Program:
Maryland National Capital Parks & Planning MD......................... 0.0027 ....... 4/2005
Commission, Prince George's County.
Montgomery County......................... ........................... 0.00088 ....... 12/2004
Prince George's County.................... ........................... 0.00231 ....... 1/2004
------------------------------
Maryland totals....................... ........................... 0.00589 0.00 .................
-----------------------------------------------
Fairfax County............................ VA......................... 0.00277 ....... 5/2005
City of Fairfax........................... ........................... 0.00138 ....... 7/2004
City of Fairfax Contractors............... ........................... 0.00060 ....... 7/2004
Prince William County..................... ........................... 0.00090 ....... 5/2005
Arlington County.......................... ........................... 0.00210 ....... 5/2005
------------------------------
Virginia totals....................... ........................... 0.00565 0.00 .................
-----------------------------------------------
Total Maryland and Virginia Area-wide ........................... 0.01 0.00 .................
Reductions--Gas Can Replacement Program
(Rounded).
-----------------------------------------------
Sale of Reformulated Consumer Products........ VA......................... 3.00 0.00 1/2005
-----------------------------------------------
Low-VOC Paints Program:
Prince George's County.................... MD......................... 0.002 ....... 5/2005
Maryland National Capital Parks & Planning ........................... 0.006 ....... 12/2003
Commission, Prince George's County.
MDOT Traffic Marking Coatings............. ........................... 0.149 ....... 12/2003
------------------------------
Maryland totals....................... ........................... 0.157 0.00 .................
----------------------------- ------------------
Virginia totals--Fairfax County....... VA......................... 0.017 ....... 4/2004
-----------------------------------------------
Total Maryland and Virginia Area-wide ........................... 0.17 0.00 .................
Reduction--Low-VOC Paints Program (Rounded).
-----------------------------------------------
Montgomery County Regional Wind Power Purchase MD......................... 0.00 0.05 12/2004
Auxiliary Power Units on Locomotives.......... VA......................... 0.01 0.13 3/2004
Arlington County Regional Wind Power Purchase. VA......................... 0.00 0.00 5/2005
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A more detailed analysis of all these voluntary emission reduction
program measures can be found in the Technical Support Document (TSD)
for this action. That TSD is included in both the hard copy and E-
docket for this rulemaking.

III. General Information Pertaining to SIP Submittals From the
Commonwealth of Virgina

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

[[Page 24989]]

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 section 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 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.
Other specific requirements of the bundle of voluntary emission
reduction program measures and the rationale for EPA's proposed action
are explained in the NPR and will not be restated here.

IV. Public Comment

We received four sets of comments via letter and/or electronically
during the public comment period. None of the comments were adverse to
our proposed approval.
Three of the letters strongly supported the proposed approval of
the nonregulatory measures in the Maryland and Virginia SIP revisions.
Two of these letters observed that there is nothing voluntary about the
State commitments in these SIP revisions even though these measures are
titled ``voluntary measures'' by EPA. EPA agrees that the observation
made in the comments is correct and reiterates EPA's policy regarding
such measures. EPA's ``voluntary measures'' policies are to cover those
emissions reduction strategies that are undertaken but are not made
enforceable against the source through a traditional regulatory process
or those strategies which are new or innovative. However, EPA ensures
that the measures are enforceable against the state by requiring the
state to commit to monitor the implementation and effectiveness of the
measure and, where a reduction credit is sought by the SIP, to make-up
any shortfall in emissions reductions.
The fourth letter was not opposed or adverse to the proposed action
but rather asserted that there was a typographical error with regards
to the emission reduction credit claimed by the Commonwealth of
Virginia for the Arlington County wind power purchase measure. The
comment letter asserts that the SIP sought no reduction credit from the
measure. EPA has reexamined the SIP revision submitted by Virginia and
agrees that EPA mistakenly proposed to credit the Arlington County wind
power purchase measure with emission reduction credit. On page 7-78 of
section 7.6 entitled ``Voluntary Bundle'' of the document entitled
``Plan to Improve Air Quality in the Washington, DC-MD-VA Region, State
Implementation Plan (SIP) ``Severe Area SIP'' Demonstrating Rate of
Progress for 2002 and 2005; Revision to 1990 Base Year Emissions; and
Severe Area Attainment Demonstration for the Washington DC-MD-VA
Nonattainment Area'' (dated February 19, 2004) in Virginia's February
25, 2004 SIP revision plainly states that ``credits will not be awarded
for purchases in Virginia jurisdictions.''
Table 1 of this document reflects this change from Table 2 of the
NPR.

V. Final Action

A. State of Maryland

EPA's review of this material indicates that Maryland's February
19, 2004 SIP submittal of non-regulatory voluntary emission reduction
program measures for the Washington area meet the applicable
requirements of EPA guidance and policy for approval. EPA is approving
the following voluntary emission reduction program measures into the
Maryland SIP: Montgomery County Regional Wind Power Purchase, Low-VOC
Paints Program, and Gas Can Replacement Program. Specifically, EPA is
approving those measures found in section 7.6 entitled ``Voluntary
Bundle'' of the document entitled ``Plan to Improve Air Quality in the
Washington, DC-MD-VA Region, State Implementation Plan (SIP) ``Severe
Area SIP'' Demonstrating Rate of Progress for 2002 and 2005; Revision
to 1990 Base Year Emissions; and Severe Area Attainment Demonstration
for the Washington DC-MD-VA Nonattainment Area'' (dated February 19,
2004) and Appendix J to this plan. This February 19, 2004 document and
its Appendix J were submitted to EPA by Maryland on February 19, 2004.
EPA is crediting the Maryland SIP with the emission reductions for
these measures shown in Table 2 of this document for the Washington
area.

B. Commonwealth of Virginia

EPA's review of this material indicates that Virginia's February
25, 2004 SIP submittal of non-regulatory voluntary emission reduction
program measures for the Washington area meet the applicable
requirements of EPA guidance and policy for approval. EPA is approving
the following voluntary emission reduction program measures into the
Virginia SIP: Low-VOC Paints Program, Sale of Reformulated Consumer
Products, Gas Can Replacement Program, Remote Sensing Device Program,
Arlington County Regional Wind Power Purchase, Auxiliary Power Units on
Locomotives, Alternative Fueled Vehicle (AFV) Purchase Program, and
Diesel Bus Retrofit Program. Specifically, EPA is approving those
measures found in section 7.6 entitled ``Voluntary Bundle'' of the
document entitled ``Plan to Improve Air Quality in the Washington, DC-
MD-VA Region, State Implementation Plan (SIP) ``Severe Area SIP''
Demonstrating Rate of Progress for 2002 and 2005; Revision to 1990 Base
Year Emissions; and Severe Area

[[Page 24990]]

Attainment Demonstration for the Washington DC-MD-VA Nonattainment
Area'' (dated February 19, 2004) and Appendix J to this plan. This
February 19, 2004 document and its Appendix J were submitted to EPA by
Virginia on February 25, 2004. EPA is crediting the Virginia SIP with
the emission reductions shown in Table 2 of this document for the
Washington area.

VI. 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 (Pub. L. 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
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 July 11, 2005. 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 Maryland and Virginia voluntary
emission reduction program measures 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: May 2, 2005.
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 part 52 continues to read as follows:

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

Subpart V--Maryland

0
2. In Sec. 52.1070, the table in paragraph (e) is amended by adding the
entry for the Non-Regulatory Voluntary Emission Reduction Program at
the end of the table to read as follows:

Sec. 52.1070 Identification of plan.

* * * * *
(e) * * *

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State
Name of non-regulatory SIP Applicable submittal EPA approval date Additional
revision geographic area date explanation
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* * * * * * *
Non-Regulatory Voluntary Emission Washington, DC 2/19/04 5/12/05 [Insert page The nonregulatory
Reduction Program. severe 1-hour ozone number where the measures found in
nonattainment area. document begins]. section 7.6 and
Appendix J of the
plan.
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[[Page 24991]]

Subpart VV--Virginia

0
3. In Sec. 52.2420, the table in paragraph (e) is amended by adding the
entry for the Non-Regulatory Voluntary Emission Reduction Program at
the end of the table to read as follows:

Sec. 52.2420 Identification of plan.

* * * * *

* * * * * * *
Non-Regulatory Voluntary Emission Washington, DC 2/25/2004 5/12/05 [Insert page The nonregulatory
Reduction Program. severe 1-hour ozone number where the measures found in
nonattainment area. document begins]. section 7.6 and
Appendix J of the
plan.
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[FR Doc. 05-9315 Filed 5-11-05; 8:45 am]

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