[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]
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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
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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