[Federal Register: February 26, 2008 (Volume 73, Number 38)]
[Proposed Rules]
[Page 10201-10203]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26fe08-19]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2007-1068; FRL-8531-9]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Section 110(a)(1) 8-Hour Ozone Maintenance Plan for the White
Top Mountain, Smyth County, VA 1-Hour Ozone Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP)
revision submitted by the Commonwealth of Virginia. This revision
pertains to a 10-year maintenance plan for the White Top Mountain 1-
hour ozone nonattainment area located in Smyth County, Virginia. This
action is being taken under the Clean Air Act (CAA).
DATES: Written comments must be received on or before March 27, 2008.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2007-1068 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-2007-1068, 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-
2007-1068. 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: Irene Shandruk, (215) 814-2166, or by
e-mail at shandruk.irene@epa.gov.
SUPPLEMENTARY INFORMATION: On August 6, 2007, the Virginia Department
of Environmental Quality (VADEQ) submitted a revision to its (SIP) for
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approval of the section 110(a)(1) 8-hour ozone maintenance plan for
White Top Mountain, Smyth County, Virginia.
I. Background
Section 110(a)(1) of the Clean Air Act (CAA or Act) requires that
areas that were either nonattainment or attainment/unclassifiable with
an approved 175A maintenance plan for the 1-hour ozone National Ambient
Air Quality Standard (NAAQS), and attainment for the 8-hour ozone NAAQS
submit a plan to demonstrate the continued maintenance of the 8-hour
ozone NAAQS. These plans were due to EPA on June 15, 2007, three years
after the effective date of the initial 8-hour ozone designations.
On May 20, 2005, EPA issued the Maintenance Plan Guidance Document
for Certain 8-Hour Ozone Areas Under section 110(a)(1) of the Clean Air
Act. The purpose of the guidance is to assist the states in the
development of a SIP which addresses the maintenance requirements found
in section 110(a)(1) of the CAA. There are five components of the
section 110(a)(1) maintenance plan which are: (1) An attainment
inventory, which is based on actual typical summer day emissions of
volatile organic compounds (VOCs) and oxides of nitrogen
(NOX) for a ten-year period from a base year as chosen by
the state; (2) a maintenance demonstration which shows how the area
will remain in compliance with the 8-hour ozone standard for 10 years
after the effective date of designations (June 15, 2004); (3) a
commitment to continue to operate air quality monitors; (4) a
contingency plan that will ensure that a violation of the 8-hour ozone
NAAQS is promptly addressed; and (5) an explanation of how the State
will track the progress of the maintenance plan.
II. Summary of SIP Revision
The Virginia Department of Environmental Quality (VADEQ) 8-hour
ozone maintenance plan addresses the components of the section
110(a)(1) 8-hour ozone maintenance plan as outlined in EPA's May 20,
2005 guidance. Virginia has requested approval of a revision consisting
of a 10-year maintenance plan under section 110(a)(1) for the White Top
Mountain 1-hour ozone nonattainment area located in Smyth County,
Virginia.
VADEQ addressed the section 110(a)(1) guidance components as
follows:
Emissions Inventory: VADEQ provided an explanation describing that
White Top Mountain has no anthropogenic emissions, and since the
guidance document states that projecting emissions and demonstrating
maintenance for 10 years is not required for areas where there are
essentially no anthropogenic emissions, emissions projections are not
necessary, and thereby, not included in this maintenance plan.
Maintenance Demonstration and Tracking Progress: The demonstration
should show how the area will remain in compliance with the 8-hour
ozone standard for 10 years following the base year following the
effective date of designation (June 15, 2004). This is usually
accomplished by a demonstration that the area will have emissions that
are equal to or below the emissions inventories of VOC and
NOX for this 10-year period. Since White Top Mountain has no
anthropogenic emissions, and since the guidance indicates that a
maintenance demonstration is not necessary for areas with essentially
no anthropogenic emissions, a maintenance demonstration has not been
included in this maintenance plan.
Ambient Air Quality Monitoring: The state should continue to
operate air quality monitors in accordance with 40 CFR Part 58 to
verify maintenance of the 8-hour ozone standard. Virginia, however, has
never operated monitors on White Top Mountain. All of the monitors at
this site were part of studies either managed by the Tennessee Valley
Authority or EPA's Office of Research and Development, but these
monitoring studies have ceased since 1999. Virginia does not have any
monitors in place to operate nor does the Commonwealth plan on
establishing a monitoring site. This is so for reasons which include
the following: (1) There are no anthropogenic emissions at this site,
(2) the very remote location of this nonattainment area, and (3)
establishing a monitoring site would be cost-prohibitive.
Contingency Measures: The guidance indicates that most areas must
develop a contingency plan that will ensure any violation of the 8-hour
ozone NAAQS is promptly corrected. The guidance also states that for
areas that have essentially no anthropogenic emissions, having a
maintenance plan with contingency measures would be an ``absurd''
outcome. Therefore, contingency measures are not necessary, and
thereby, not included in this maintenance plan.
Verification of Continued Attainment: Since emissions projections
depend on assumptions of point, area, and mobile sources emissions, the
guidance indicates that the state should indicate how it will track the
progress of the maintenance plan. However, since the guidance
specifically notes that emissions inventories and contingency measures
are not necessary for areas where there are essentially no
anthropogenic emissions, verification of these requirements is also not
necessary, and therefore, not included in the maintenance plan.
The VADEQ is requesting approval of their SIP revision which
consists of a 10-year maintenance plan under section 110(a)(1) for the
White Top Mountain 1-hour ozone nonattainment area located in Smyth
County, Virginia.
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
[[Page 10203]]
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. Proposed Action
EPA's review of this material indicates that Virginia has addressed
the components of a maintenance plan pursuant to EPA's May 20, 2005
guidance. EPA is proposing to approve the Virginia SIP revision for
White Top Mountain, Smyth County, Virginia, which was submitted on
August 6, 2007. EPA is soliciting public comments on the issues
discussed in this document. These comments will be considered before
taking final action.
V. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed 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 proposes to approve state law as meeting Federal
requirements and imposes no additional requirements beyond those
imposed by state law. Accordingly, the Administrator certifies that
this proposed 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 proposes to approve 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 proposed rule also does 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), nor will it 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), because it
merely proposes to approve a state rule implementing a Federal
requirement, and does not alter the relationship or the distribution of
power and responsibilities established in the CAA. This proposed rule
also is not subject to Executive Order 13045 (62 FR 19885, April 23,
1997), because it approves a state rule implementing a Federal
standard.
In reviewing SIP submissions, EPA(s role is to approve state
choices, provided that they meet the criteria of the CAA. 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 CAA. 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. As required by section 3 of
Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this
proposed rule, EPA has taken the necessary steps to eliminate drafting
errors and ambiguity, minimize potential litigation, and provide a
clear legal standard for affected conduct. EPA has complied with
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the
takings implications of the rule in accordance with the (Attorney
General(s Supplemental Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings( issued under the executive order.
This action proposing approval of Virginia's SIP revision request
consisting of a 10-year maintenance plan under Sec. 110(a)(1) for the
White Top Mountain 1-hour ozone nonattainment area located in Smyth
County, Virginia does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
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.
Authority: 42 U.S.C. 7401 et seq.
Dated: February 12, 2008.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. E8-3358 Filed 2-25-08; 8:45 am]
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