Approval and Promulgation of Air Quality Implementation Plans; Virginia; Amendments to the Ambient Air Quality Standards, 892-894 [E6-30]
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892
Federal Register / Vol. 71, No. 4 / Friday, January 6, 2006 / Proposed Rules
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 Clean
Air Act. This proposed rule also is not
subject to Executive Order 13045 (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. 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 proposed rule, to approve
the Virginia Department of
Environmental Quality State
Implementation Plan revision request
requiring implementation of NSR in the
Virginia portion of the Ozone Transport
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Jkt 208001
Region, 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, Carbon monoxide,
Intergovernmental relations, Nitrogen
dioxide, Ozone, Particulate matter,
Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 28, 2005.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. E6–37 Filed 1–5–06; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2005–VA–0016; FRL–
8019–7]
Approval and Promulgation of Air
Quality Implementation Plans; Virginia;
Amendments to the Ambient Air
Quality Standards
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
SUMMARY: EPA is proposing to approve
a State Implementation Plan (SIP)
revision submitted by the
Commonwealth of Virginia. This
revision pertains to the amendments of
the Commonwealth’s existing ambient
air quality standards. This action is
being taken under the Clean Air Act
(CAA or the Act).
DATES: Written comments must be
received on or before February 6, 2006.
ADDRESSES: Submit your comments,
identified by Docket ID Number EPA–
R03–OAR–2005–VA–0016 by one of the
following methods:
A. www.regulations.gov. Follow the
on-line instructions for submitting
comments.
B. E-mail: morris.makeba@epa.gov.
C. Mail: EPA–R03–OAR–2005–VA–
0016, Makeba Morris, 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 previouslylisted 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.
PO 00000
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Fmt 4702
Sfmt 4702
Instructions: Direct your comments to
Docket ID No. EPA–R03–OAR–2005–
VA–0016. EPA’s policy is that all
comments received will be included in
the public docket without change, and
may be made available online at
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 www.regulations.gov
or e-mail. The www.regulations.gov Web
site is a ‘‘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 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
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 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.
Rose
Quinto, (215) 814–2182, or by e-mail at
quinto.rose@epa.gov.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
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06JAP1
Federal Register / Vol. 71, No. 4 / Friday, January 6, 2006 / Proposed Rules
I. Background
In 1997, EPA adopted an 8-hour
ozone national ambient air quality
standard (NAAQS) with a level of 0.08
parts per million (ppm) to provide
greater protection to public health than
the previous standard of 0.12 ppm
averaged over a 1-hour block of time (62
FR 38894, July 18, 1997). At the same
time, EPA established a new standard
for fine particulate matter (PM2.5) that
applies to particles 2.5 microns in
diameter or less (62 FR 38711, July 18,
1997). These standards became effective
on September 16, 1997 and are located
in 40 CFR part 50.
On September 26, 2005, the
Commonwealth submitted a SIP
revision that amends the existing
Virginia Regulations for the Control and
Abatement of Air Pollution (9 VAC 5
Chapter 30, Ambient Air Quality
Standards). This amendment includes
the NAAQS for the 8-hour ozone and
PM2.5, as well as general revisions to the
Commonwealth’s regulations consistent
with 40 CFR part 50.
II. Summary of SIP Revision
The Commonwealth’s revision
incorporates the 1997 NAAQS for the 8hour ozone and PM2.5 standards into 9
VAC 5 Chapter 30. This SIP revision
provides that the 8-hour primary and
secondary ozone ambient air quality
standards are met when the average of
the fourth highest daily maximum 8hour average ozone concentration is less
than or equal to 0.08 ppm, averaged
over three consecutive years. In
addition, the SIP revision adds a new
PM2.5 ambient air quality standard. The
standards incorporated in this SIP
revision are 65 micrograms per cubic
meter based on a 24-hour average
concentration and 15.0 micrograms per
cubic meter annual arithmetic mean
concentration.
The other SIP revisions incorporated
into 9 VAC 5 Chapter 30, are
amendments to the ambient air quality
standards for sulfur dioxide, carbon
monoxide, ozone (1-hour), PM10,
nitrogen dioxide, and lead, to make the
state regulation consistent with 40 CFR
part 50.
cprice-sewell on PROD1PC66 with PROPOSALS
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
VerDate Aug<31>2005
14:58 Jan 05, 2006
Jkt 208001
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 is generated or developed before the
commencement of a voluntary
environmental assessment; (2) that is
prepared independently of the
assessment process; (3) that
demonstrates a clear, imminent and
substantial danger to the public health
or environment; or (4) that is 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 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
PO 00000
Frm 00005
Fmt 4702
Sfmt 4702
893
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. Proposed Action
EPA’s review of this material
indicates that the amendments to 9 VAC
5 Chapter 30 are consistent with 40 CFR
part 50. EPA is proposing to approve the
Virginia SIP revision for 9 VAC 5
Chapter 30, which was submitted on
September 26, 2005. 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
E:\FR\FM\06JAP1.SGM
06JAP1
cprice-sewell on PROD1PC66 with PROPOSALS
894
Federal Register / Vol. 71, No. 4 / Friday, January 6, 2006 / Proposed Rules
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 Clean
Air Act. This proposed rule also is not
subject to Executive Order 13045 (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. 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 proposed rule pertaining to the
amendments of Virginia’s ambient air
quality standards, does not impose an
information collection burden under the
VerDate Aug<31>2005
14:58 Jan 05, 2006
Jkt 208001
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, Carbon monoxide,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 28, 2005.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. E6–30 Filed 1–5–06; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 122
[OW–2002–0068; FRL–8019–6]
RIN 2040–AE81
Amendments to the National Pollutant
Discharge Elimination System
(NPDES) Regulations for Storm Water
Discharges Associated With Oil and
Gas Exploration, Production,
Processing, or Treatment Operations,
or Transmission Facilities
Environmental Protection
Agency (EPA).
ACTION: Notice of proposed rulemaking.
AGENCY:
SUMMARY: Today EPA proposes action to
codify in the Agency’s regulations
changes to the Federal Water Pollution
Control Act resulting from the Energy
Policy Act of 2005. This proposed
action would modify National Pollutant
Discharge Elimination System
regulations to provide that certain storm
water discharges from field activities,
including construction, associated with
oil and gas exploration, production,
processing, or treatment operations, or
transmission facilities would be exempt
from National Pollutant Discharge
Elimination System permit
requirements. This action also
encourages voluntary application of best
management practices for oil and gas
field activities and operations to
minimize the discharge of pollutants in
storm water runoff and protect water
quality.
DATES: Comments must be received on
or before February 21, 2006.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–HQ–
OW–2002–0068 by one of the following
methods:
• www.regulations.gov: Follow the
on-line instructions for submitting
comments.
PO 00000
Frm 00006
Fmt 4702
Sfmt 4702
• E-mail: ow-docket@epa.gov
• Mail: Water Docket, Environmental
Protection Agency, Mailcode: 4101T,
1200 Pennsylvania Ave., NW.,
Washington, DC 20460. Please include a
total of three copies.
• Hand Delivery: EPA Docket Center,
EPA West, Room B102, 1301
Constitution Ave., NW., Washington,
DC 20004. 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–HQ–OW–2002–
0068. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at
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 www.regulations.gov
or e-mail. The 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 www.regulations.gov, your email 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. For additional information
about EPA’s public docket, visit the EPA
Docket Center homepage at
www.epa.gov/epahome/dockets.htm.
For additional instructions on
submitting comments, go to Unit I.C of
the SUPPLEMENTARY INFORMATION section
of the document.
Docket: All documents in the docket
are listed in the www.regulations.gov
index. Although listed in the index,
some information is not publicly
available, e.g., CBI or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, will be publicly
E:\FR\FM\06JAP1.SGM
06JAP1
Agencies
[Federal Register Volume 71, Number 4 (Friday, January 6, 2006)]
[Proposed Rules]
[Pages 892-894]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-30]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2005-VA-0016; FRL- 8019-7]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Amendments to the Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP)
revision submitted by the Commonwealth of Virginia. This revision
pertains to the amendments of the Commonwealth's existing ambient air
quality standards. This action is being taken under the Clean Air Act
(CAA or the Act).
DATES: Written comments must be received on or before February 6, 2006.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2005-VA-0016 by one of the following methods:
A. www.regulations.gov. Follow the on-line instructions for
submitting comments.
B. E-mail: morris.makeba@epa.gov.
C. Mail: EPA-R03-OAR-2005-VA-0016, Makeba Morris, 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-
2005-VA-0016. EPA's policy is that all comments received will be
included in the public docket without change, and may be made available
online at 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 www.regulations.gov
or e-mail. The www.regulations.gov Web site is a ``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
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
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 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: Rose Quinto, (215) 814-2182, or by e-
mail at quinto.rose@epa.gov.
SUPPLEMENTARY INFORMATION:
[[Page 893]]
I. Background
In 1997, EPA adopted an 8-hour ozone national ambient air quality
standard (NAAQS) with a level of 0.08 parts per million (ppm) to
provide greater protection to public health than the previous standard
of 0.12 ppm averaged over a 1-hour block of time (62 FR 38894, July 18,
1997). At the same time, EPA established a new standard for fine
particulate matter (PM2.5) that applies to particles 2.5
microns in diameter or less (62 FR 38711, July 18, 1997). These
standards became effective on September 16, 1997 and are located in 40
CFR part 50.
On September 26, 2005, the Commonwealth submitted a SIP revision
that amends the existing Virginia Regulations for the Control and
Abatement of Air Pollution (9 VAC 5 Chapter 30, Ambient Air Quality
Standards). This amendment includes the NAAQS for the 8-hour ozone and
PM2.5, as well as general revisions to the Commonwealth's
regulations consistent with 40 CFR part 50.
II. Summary of SIP Revision
The Commonwealth's revision incorporates the 1997 NAAQS for the 8-
hour ozone and PM2.5 standards into 9 VAC 5 Chapter 30. This
SIP revision provides that the 8-hour primary and secondary ozone
ambient air quality standards are met when the average of the fourth
highest daily maximum 8-hour average ozone concentration is less than
or equal to 0.08 ppm, averaged over three consecutive years. In
addition, the SIP revision adds a new PM2.5 ambient air
quality standard. The standards incorporated in this SIP revision are
65 micrograms per cubic meter based on a 24-hour average concentration
and 15.0 micrograms per cubic meter annual arithmetic mean
concentration.
The other SIP revisions incorporated into 9 VAC 5 Chapter 30, are
amendments to the ambient air quality standards for sulfur dioxide,
carbon monoxide, ozone (1-hour), PM10, nitrogen dioxide, and
lead, to make the state regulation consistent with 40 CFR part 50.
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 is generated or developed
before the commencement of a voluntary environmental assessment; (2)
that is prepared independently of the assessment process; (3) that
demonstrates a clear, imminent and substantial danger to the public
health or environment; or (4) that is 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 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. Proposed Action
EPA's review of this material indicates that the amendments to 9
VAC 5 Chapter 30 are consistent with 40 CFR part 50. EPA is proposing
to approve the Virginia SIP revision for 9 VAC 5 Chapter 30, which was
submitted on September 26, 2005. 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
[[Page 894]]
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 Clean Air
Act. This proposed rule also is not subject to Executive Order 13045
(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. 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 proposed rule pertaining to the amendments of Virginia's
ambient air quality standards, 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, Carbon monoxide,
Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 28, 2005.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. E6-30 Filed 1-5-06; 8:45 am]
BILLING CODE 6560-50-P