Approval and Promulgation of Air Quality Implementation Plans; Virginia; Attainment Demonstration for the Roanoke Metropolitan Statistical Area (MSA) Ozone Early Action Compact Area, 48277-48280 [05-16294]

Download as PDF Federal Register / Vol. 70, No. 158 / Wednesday, August 17, 2005 / Rules and Regulations Submit comments electronically via the Commission’s Filing Online system, which can be accessed at https://www.prc.gov. ADDRESSES: Stephen L. Sharfman, General Counsel, 202–789–6818. This order provides notice of the Commission’s adoption of minor nomenclature changes in various provisions codified at 39 CFR parts 3001 through 3003. These changes are required because the Commission is relocating from 1333 H Street, NW., Suite 300, Washington, DC 20268–0001 to 901 New York Avenue, NW., Suite 200, Washington, DC 20268– 0001. The effective date of the changes is August 29, 2005. The revisions do not entail any changes to existing telephone numbers, ZIP Code, e-mail addresses or the Commission’s Web site address (https://www.prc.gov). SUPPLEMENTARY INFORMATION: I. Physical address References to the Commission’s current physical address are being replaced whenever they appear with the Commission’s new physical address. This affects 39 CFR 3001.9; 43(e)(4)(i); 3001.110 and 116; 39 CFR 3002.3(c); and 39 CFR 3003.3. II. Notice of Adoption of Changes and Effective Date Given the nature and limited extent of these changes, the Commission is adopting them as a direct final rule. The effective date is August 29, 2005, which coincides with the continuation of official business at the new location. The Commission directs the Secretary to arrange for publication of this order in the Federal Register. It is ordered: 1. The Commission adopts the nomenclature changes referred to in the body of this order, effective August 29, 2005. 2. The Secretary shall arrange for publication of this order in the Federal Register. Issued: August 10, 2005. By the Commission. Steven W. Williams, Secretary. List of Subjects in 39 CFR Parts 3001, 3002 and 3003 Administrative practice and procedure, Postal Service. For the reasons stated in the preamble, the Commission amends 39 CFR parts 3001, 3002, and 3003 as follows: I VerDate jul<14>2003 11:00 Aug 16, 2005 Jkt 205001 This final rule is effective on September 16, 2005. ADDRESSES: EPA has established a I 1. The authority citation for part 3001 docket for this action under Regional continues to read as follows: Material in EDocket (RME) ID Number Authority: 39 U.S.C. 404(b); 3603; 3622– R03–OAR–2005–VA–0004. All 24; 3661; 3662; 3663. documents in the docket are listed in I 2. Amend part 3001 by replacing the the RME index at https:// words ‘‘1333 H Street NW., Suite 3000,’’ www.docket.epa.gov/rmepub/. Once in wherever they appear with the words the system, select ‘‘quick search,’’ then ‘‘901 New York Avenue NW., Suite 200.’’ key in the appropriate RME identification number. Although listed PART 3002—RULES OF PRACTICE in the electronic docket, some AND PROCEDURE information is not publicly available, i.e., confidential business information I 1. The authority citation for part 3002 (CBI) or other information whose continues to read as follows: disclosure is restricted by statute. Authority: 39 U.S.C. 3603; 5 U.S.C. 552. Certain other material, such as I 2. Amend part 3002 by replacing the copyrighted material, is not placed on words ‘‘1333 H Street NW., Suite 300,’’ the Internet and will be publicly wherever they appear with the words available only in hard copy form. ‘‘901 New York Avenue NW., Suite Publicly available docket materials are 200,’’. available either electronically in RME or in hard copy for public inspection PART 3003–PRIVACY ACT RULES during normal business hours at the Air Protection Division, U.S. Environmental I 1. The authority citation for part 3003 Protection Agency, Region III, 1650 continues to read as follows: Arch Street, Philadelphia, Pennsylvania Authority: Privacy Act of 1974 (Pub. L. 19103. Copies of the State submittal are 93–579); 5 U.S.C. 552a. available at the Virginia Department of I 2. Amend part 3003 by replacing the Environmental Quality, 629 East Main words ‘‘1333 H Street NW., Suite 300,’’ Street, Richmond, Virginia 23219. wherever they appear with the words FOR FURTHER INFORMATION CONTACT: ‘‘901 New York Avenue NW., Suite 200.’’ Ellen Wentworth, (215) 814–2034, or by e-mail at wentworth.ellen@epa.gov. [FR Doc. 05–16219 Filed 8–16–05; 8:45 am] SUPPLEMENTARY INFORMATION: BILLING CODE 7910–FW–M PART 3001—RULES OF PRACTICE AND PROCEDURE FOR FURTHER INFORMATION CONTACT: 48277 DATES: I. Background ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [R03–OAR–2005–VA–0004; FRL–7954–1] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Attainment Demonstration for the Roanoke Metropolitan Statistical Area (MSA) Ozone Early Action Compact Area Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: SUMMARY: EPA is taking final action to approve a revision to the Commonwealth of Virginia State Implementation Plan (SIP). This revision consists of an Early Action Compact (EAC) Plan that will enable the Roanoke Metropolitan Statistical Area (MSA) Ozone EAC Area to demonstrate attainment and maintenance of the 8hour ozone national ambient air quality (NAAQS) standard. This action is being taken under the Clean Air Act (CAA or Act). PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 On May 17, 2005 (70 FR 28252), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed approval of the attainment demonstration and Early Action Plan (EAP) for the Roanoke MSA Ozone EAC Area, which consists of the Counties of Botetourt and Roanoke, the Cities of Roanoke and Salem, and the Town of Vinton. The formal SIP revision was submitted by the Virginia Department of Environmental Quality on December 21, 2004, and supplemented on February 17, 2005. Other specifics of the Commonwealth’s SIP revision for the Roanoke MSA Ozone EAC Area, and the rationale for EPA’s proposed action are explained in the NPR and will not be restated here. On June 16, 2005, EPA received adverse comments on its May 17, 2005 NPR. A summary of the comments submitted and EPA’s responses are provided in Section II of this document. II. Summary of Public Comments and EPA Responses Comment: Several commenters expressed support for the compact E:\FR\FM\17AUR1.SGM 17AUR1 48278 Federal Register / Vol. 70, No. 158 / Wednesday, August 17, 2005 / Rules and Regulations process, the goal of clean air sooner, the incentives and flexibility the program provides for encouraging early reductions of ozone-forming pollution, and the deferred effective date of nonattainment designations. Response: EPA acknowledges the comments of support for our final action. Comment: One commenter opposes the approval of the SIP revision for the Roanoke MSA Ozone EAC Area because the Area is in violation of the 8-hour ozone standard. The commenter also states that the SIP revision provides for the deferment of a nonattainment designation until a future date, potentially as late as December 31, 2007, and relieves the Area of obligations under Title I, part D of the CAA. Although the commenter is supportive of the goal of addressing proactively the public health concerns associated with ozone pollution, the commenter believes that EPA does not have the legal authority to defer effective dates of designations or to allow areas to be relieved of obligations under Title I, part D of the CAA while they are violating the 8-hour ozone standard, or are designated nonattainment of that standard. Response: EPA first announced the EAC process in a June 19, 2002 letter from Gregg Cooke, Administrator, EPA Region VI to Robert Huston, Texas Commission on Environmental Quality, followed by a November 14, 2002 memorandum from Jeffrey R. Holmstead, Assistant Administrator, EPA’s Office of Air and Radiation to the EPA Regional Administrators, entitled, ‘‘Schedule for 8-Hour Ozone Designations and its Effect on Early Action Compacts.’’ EPA formalized the EAC process in the designation rulemaking on April 30, 2004 (69 FR 23858). In the designation rule, EPA designated 14 EAC areas as nonattainment, but deferred the effective date of the designation until September 30, 2005. The EAC program gives local areas the flexibility to develop their own approach to meeting the 8-hour ozone standard, provided the participating communities are serious in their commitment to control emissions from local sources earlier than the CAA would otherwise require. By involving diverse stakeholders, including representatives from industry, local and State governments, and local environmental citizens’ groups, a number of communities are discussing for the first time the need for regional cooperation in solving air quality problems that affect the health and welfare of its citizens. People living in these areas that achieve reductions in VerDate jul<14>2003 11:00 Aug 16, 2005 Jkt 205001 pollution levels sooner will enjoy the health benefits of cleaner air sooner than might otherwise occur. EPA believes this proactive approach involving multiple, diverse stakeholders is beneficial to the citizens of the area by raising awareness of the need to adopt and implement measures that will reduce emissions and improve air quality. EPA disagrees with the comments that this action on the SIP revision for the Roanoke MSA Ozone EAC Area defers the nonattainment designation for this Area. In our May 17, 2005 NPR (70 FR 28252), EPA proposed approval of an attainment demonstration and EAP SIP revision for the Roanoke MSA Ozone EAC Area. This SIP revision includes an attainment demonstration which demonstrates attainment of the 8-hour ozone NAAQS in the Roanoke MSA Ozone EAC Area by December 31, 2007, and also demonstrates maintenance of the 8-hour NAAQS for five years following the attainment date. As noted in the proposed action, approval of the attainment demonstration and EAP constitutes one of several milestones that an area must meet in order to participate in the EAC process. While approval of this plan is a prerequisite for an extension of the deferred effective date of the designation of this Area, see 40 CFR 81.300(e)(3), neither the proposed approval of this SIP revision nor this final action approving the SIP revision purports to extend the deferral of the effective date of the nonattainment designation for this Area. In a separate rulemaking (69 FR 23858, April 30, 2004), EPA deferred the effective date of the air quality designations of all 14 EAC areas to September 30, 2005. In the April 30, 2004 final rule, EPA responded to comments received during the comment period for this final rule. In a separate proposed rule (70 FR 33409, June 8, 2005), EPA proposed to extend the deferral of the effective date of the air quality designations for these 14 EAC areas. EPA will consider comments regarding its legal authority in the final rule associated with the June 8, 2005 proposed rule. Regardless of whether EPA’s separate actions deferring the effective date of the nonattainment designation for this Area are appropriate, EPA sees no basis to disapprove the attainment and maintenance plan. The provisions of the statute generally provide that areas must demonstrate attainment and maintenance of the NAAQS. See, e.g., CAA section 110(a)(1) (requiring areas to submit plans providing for ‘‘implementation, maintenance, and enforcement’’ of each NAAQS) and CAA PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 section 172(c)(1) (requiring nonattainment areas to submit plans demonstrating attainment of the NAAQS). The commenter has provided no substantive reason why this plan does not demonstrate attainment and maintenance of the 8-hour standard. Therefore, this action approving the attainment demonstration and maintenance plan is appropriate. 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 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 E:\FR\FM\17AUR1.SGM 17AUR1 Federal Register / Vol. 70, No. 158 / Wednesday, August 17, 2005 / Rules and Regulations 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. IV. Final Action EPA is approving the attainment demonstration and the EAP for the Roanoke MSA Ozone EAC Area. The modeling of the ozone and ozone precursor emissions from sources affecting the Roanoke MSA Ozone EAC Area demonstrates that the specified control strategies will provide for attainment of the 8-hour ozone NAAQS by December 31, 2007, and maintenance of that standard through 2012. 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 VerDate jul<14>2003 11:00 Aug 16, 2005 Jkt 205001 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 requirement, 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, PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 48279 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 October 17, 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, approving the attainment demonstration and the EAP for the Roanoke MSA Ozone EAC Area, 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: August 9, 2005. Donald S. Welsh, Regional Administrator, Region III. I 40 CFR part 52 is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: I E:\FR\FM\17AUR1.SGM 17AUR1 48280 Federal Register / Vol. 70, No. 158 / Wednesday, August 17, 2005 / Rules and Regulations Authority: 42 U.S.C. 7401 et seq. Subpart VV—Virginia 2. In § 52.2420, the entry for the Attainment Demonstration and the Early I Action Plan for the Roanoke MSA Early Action Compact Area in paragraph (e) is added at the end of the table to read as follows: § 52.2420 * Identification of plan. * * (e) * * * * * EPA APPROVED NONREGULATORY AND QUASI-REGULATORY MATERIAL State submittal date Name of non-regulatory SIP revision Applicable geographic area * * Attainment Demonstration and Early Action Plan for the Roanoke MSA Ozone Early Action Compact Area. * * Botetourt County, Roanoke City, Roanoke County, and Salem City. [FR Doc. 05–16294 Filed 8–16–05; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [R03–OAR–2005–VA–0005; FRL–7954–4] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Attainment Demonstration for the Northern Shenandoah Valley Ozone Early Action Compact Area Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: EPA is taking final action to approve a revision to the Commonwealth of Virginia State Implementation Plan (SIP). This revision consists of an Early Action Compact (EAC) Plan that will enable the Northern Shenandoah Valley Ozone EAC Area to demonstrate attainment and maintenance of the 8-hour ozone national ambient air quality (NAAQS) standard. This action is being taken under the Clean Air Act (CAA or Act). DATES: This final rule is effective on September 16, 2005. ADDRESSES: EPA has established a docket for this action under Regional Material in EDocket (RME) ID Number R03–OAR–2005–VA–0005. All documents in the docket are listed in the RME index at https:// 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 SUMMARY: VerDate jul<14>2003 11:56 Aug 16, 2005 Jkt 205001 * 12/21/04, 2/15/05 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 Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia 23219. FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814–2182, or by e-mail at quinto.rose@epa.gov. SUPPLEMENTARY INFORMATION: I. Background On May 17, 2005 (70 FR 28260), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed approval of the attainment demonstration and the Early Action Plan (EAP) for the Northern Shenandoah Valley Ozone EAC Area, which consists of the City of Winchester and Frederick County. The formal SIP revision was submitted by the Virginia Department of Environmental Quality on December 20, 2004 and supplemented on February 15, 2005. Other specifics of the Commonwealth’s SIP revision for the Northern Shenandoah Valley Ozone EAC Area, and the rationale for EPA’s proposed action are explained in the NPR and will not be restated here. On June 16, 2005, EPA received adverse comments on its May 17, 2005 NPR. A summary of the comments submitted and EPA’s responses are provided in Section II of this document. II. Summary of Public Comments and EPA Responses Comment: Several commenters expressed support for the compact PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 EPA approval date * 8/17/05 [Insert Federal Register page number where the document begins]. Additional explanation * process, the goal of clean air sooner, the incentives and flexibility the program provides for encouraging early reductions of ozone-forming pollution, and the deferred effective date of nonattainment designations. Response: EPA acknowledges the comments of support for our final action. Comment: One commenter opposes the approval of the SIP revision for the Northern Shenandoah Valley Ozone EAC Area because the Area is in violation of the 8-hour ozone standard. The commenter also states that the SIP revision provides for the deferment of a nonattainment designation until a future date, potentially as late as December 31, 2007, and relieves the Area of obligations under Title I, part D of the CAA. Although the commenter is supportive of the goal of addressing proactively the public health concerns associated with ozone pollution, the commenter believes that EPA does not have the legal authority to defer effective dates of designations or to allow areas to be relieved of obligations under Title I, part D of the CAA while they are violating the 8-hour ozone standard, or are designated nonattainment of that standard. Response: EPA first announced the EAC process in a June 19, 2002 letter from Gregg Cooke, Administrator, EPA Region VI to Robert Huston, Texas Commission on Environmental Quality, followed by a November 14, 2002 memorandum from Jeffrey R. Holmstead, Assistant Administrator, EPA’s Office of Air and Radiation to the EPA Regional Administrators, entitled, ‘‘Schedule for 8-Hour Ozone Designations and its Effect on Early Action Compacts.’’ EPA formalized the EAC process in the designation rulemaking on April 30, 2004 (69 FR 23858). In the designation rule, EPA designated 14 EAC areas as nonattainment, but deferred the E:\FR\FM\17AUR1.SGM 17AUR1

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 70, Number 158 (Wednesday, August 17, 2005)]
[Rules and Regulations]
[Pages 48277-48280]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-16294]

=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R03-OAR-2005-VA-0004; FRL-7954-1]

Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Attainment Demonstration for the Roanoke Metropolitan
Statistical Area (MSA) Ozone Early Action Compact Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is taking final action to approve a revision to the
Commonwealth of Virginia State Implementation Plan (SIP). This revision
consists of an Early Action Compact (EAC) Plan that will enable the
Roanoke Metropolitan Statistical Area (MSA) Ozone EAC Area to
demonstrate attainment and maintenance of the 8-hour ozone national
ambient air quality (NAAQS) standard. This action is being taken under
the Clean Air Act (CAA or Act).

DATES: This final rule is effective on September 16, 2005.

ADDRESSES: EPA has established a docket for this action under Regional
Material in EDocket (RME) ID Number R03-OAR-2005-VA-0004. All documents
in the docket are listed in the RME index at https://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 Virginia Department of Environmental
Quality, 629 East Main Street, Richmond, Virginia 23219.

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

SUPPLEMENTARY INFORMATION:

I. Background

On May 17, 2005 (70 FR 28252), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed
approval of the attainment demonstration and Early Action Plan (EAP)
for the Roanoke MSA Ozone EAC Area, which consists of the Counties of
Botetourt and Roanoke, the Cities of Roanoke and Salem, and the Town of
Vinton. The formal SIP revision was submitted by the Virginia
Department of Environmental Quality on December 21, 2004, and
supplemented on February 17, 2005. Other specifics of the
Commonwealth's SIP revision for the Roanoke MSA Ozone EAC Area, and the
rationale for EPA's proposed action are explained in the NPR and will
not be restated here. On June 16, 2005, EPA received adverse comments
on its May 17, 2005 NPR. A summary of the comments submitted and EPA's
responses are provided in Section II of this document.

II. Summary of Public Comments and EPA Responses

Comment: Several commenters expressed support for the compact

[[Page 48278]]

process, the goal of clean air sooner, the incentives and flexibility
the program provides for encouraging early reductions of ozone-forming
pollution, and the deferred effective date of nonattainment
designations.
Response: EPA acknowledges the comments of support for our final
action.
Comment: One commenter opposes the approval of the SIP revision for
the Roanoke MSA Ozone EAC Area because the Area is in violation of the
8-hour ozone standard. The commenter also states that the SIP revision
provides for the deferment of a nonattainment designation until a
future date, potentially as late as December 31, 2007, and relieves the
Area of obligations under Title I, part D of the CAA. Although the
commenter is supportive of the goal of addressing proactively the
public health concerns associated with ozone pollution, the commenter
believes that EPA does not have the legal authority to defer effective
dates of designations or to allow areas to be relieved of obligations
under Title I, part D of the CAA while they are violating the 8-hour
ozone standard, or are designated nonattainment of that standard.
Response: EPA first announced the EAC process in a June 19, 2002
letter from Gregg Cooke, Administrator, EPA Region VI to Robert Huston,
Texas Commission on Environmental Quality, followed by a November 14,
2002 memorandum from Jeffrey R. Holmstead, Assistant Administrator,
EPA's Office of Air and Radiation to the EPA Regional Administrators,
entitled, ``Schedule for 8-Hour Ozone Designations and its Effect on
Early Action Compacts.'' EPA formalized the EAC process in the
designation rulemaking on April 30, 2004 (69 FR 23858). In the
designation rule, EPA designated 14 EAC areas as nonattainment, but
deferred the effective date of the designation until September 30,
2005. The EAC program gives local areas the flexibility to develop
their own approach to meeting the 8-hour ozone standard, provided the
participating communities are serious in their commitment to control
emissions from local sources earlier than the CAA would otherwise
require. By involving diverse stakeholders, including representatives
from industry, local and State governments, and local environmental
citizens' groups, a number of communities are discussing for the first
time the need for regional cooperation in solving air quality problems
that affect the health and welfare of its citizens. People living in
these areas that achieve reductions in pollution levels sooner will
enjoy the health benefits of cleaner air sooner than might otherwise
occur. EPA believes this proactive approach involving multiple, diverse
stakeholders is beneficial to the citizens of the area by raising
awareness of the need to adopt and implement measures that will reduce
emissions and improve air quality.
EPA disagrees with the comments that this action on the SIP
revision for the Roanoke MSA Ozone EAC Area defers the nonattainment
designation for this Area. In our May 17, 2005 NPR (70 FR 28252), EPA
proposed approval of an attainment demonstration and EAP SIP revision
for the Roanoke MSA Ozone EAC Area. This SIP revision includes an
attainment demonstration which demonstrates attainment of the 8-hour
ozone NAAQS in the Roanoke MSA Ozone EAC Area by December 31, 2007, and
also demonstrates maintenance of the 8-hour NAAQS for five years
following the attainment date. As noted in the proposed action,
approval of the attainment demonstration and EAP constitutes one of
several milestones that an area must meet in order to participate in
the EAC process. While approval of this plan is a prerequisite for an
extension of the deferred effective date of the designation of this
Area, see 40 CFR 81.300(e)(3), neither the proposed approval of this
SIP revision nor this final action approving the SIP revision purports
to extend the deferral of the effective date of the nonattainment
designation for this Area. In a separate rulemaking (69 FR 23858, April
30, 2004), EPA deferred the effective date of the air quality
designations of all 14 EAC areas to September 30, 2005. In the April
30, 2004 final rule, EPA responded to comments received during the
comment period for this final rule. In a separate proposed rule (70 FR
33409, June 8, 2005), EPA proposed to extend the deferral of the
effective date of the air quality designations for these 14 EAC areas.
EPA will consider comments regarding its legal authority in the final
rule associated with the June 8, 2005 proposed rule.
Regardless of whether EPA's separate actions deferring the
effective date of the nonattainment designation for this Area are
appropriate, EPA sees no basis to disapprove the attainment and
maintenance plan. The provisions of the statute generally provide that
areas must demonstrate attainment and maintenance of the NAAQS. See,
e.g., CAA section 110(a)(1) (requiring areas to submit plans providing
for ``implementation, maintenance, and enforcement'' of each NAAQS) and
CAA section 172(c)(1) (requiring nonattainment areas to submit plans
demonstrating attainment of the NAAQS). The commenter has provided no
substantive reason why this plan does not demonstrate attainment and
maintenance of the 8-hour standard. Therefore, this action approving
the attainment demonstration and maintenance plan is appropriate.

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 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 Sec. 10.1-1198, therefore, documents or
other information needed

[[Page 48279]]

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.

IV. Final Action

EPA is approving the attainment demonstration and the EAP for the
Roanoke MSA Ozone EAC Area. The modeling of the ozone and ozone
precursor emissions from sources affecting the Roanoke MSA Ozone EAC
Area demonstrates that the specified control strategies will provide
for attainment of the 8-hour ozone NAAQS by December 31, 2007, and
maintenance of that standard through 2012.

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 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
requirement, 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 October 17, 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, approving the attainment demonstration and the EAP for
the Roanoke MSA Ozone EAC Area, 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: August 9, 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

[[Page 48280]]

follows:

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

Subpart VV--Virginia

0
2. In Sec. 52.2420, the entry for the Attainment Demonstration and the
Early Action Plan for the Roanoke MSA Early Action Compact Area in
paragraph (e) is added at the end of the table to read as follows:

Sec. 52.2420 Identification of plan.

* * * * *
(e) * * *

EPA Approved Nonregulatory and Quasi-Regulatory Material
----------------------------------------------------------------------------------------------------------------
State
Name of non-regulatory SIP revision Applicable geographic submittal EPA approval date Additional
area date explanation
----------------------------------------------------------------------------------------------------------------

* * * * * * *
Attainment Demonstration and Early Botetourt County, 12/21/04, 8/17/05 [Insert ..............
Action Plan for the Roanoke MSA Roanoke City, Roanoke 2/15/05 Federal Register page
Ozone Early Action Compact Area. County, and Salem number where the
City. document begins].
----------------------------------------------------------------------------------------------------------------

[FR Doc. 05-16294 Filed 8-16-05; 8:45 am]
BILLING CODE 6560-50-P

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