Approval and Promulgation of Air Quality Implementation Plans; Virginia; NSR in the Ozone Transport Region, 890-892 [E6-37]
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890
Federal Register / Vol. 71, No. 4 / Friday, January 6, 2006 / Proposed Rules
Adoption of the Amendment
In consideration of the foregoing, the
Federal Aviation Administration
amends 14 CFR part 71 as follows:
PART 71—DESIGNATION OF CLASS A,
CLASS B, CLASS C, CLASS D, AND
CLASS E AIRSPACE AREAS; ROUTES;
AND REPORTING POINTS
1. The authority citation for 14 CFR
part 71 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40103, 40113,
40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–
1963 Comp., p. 389.
§ 71.1
[Amended]
2. The incorporation by reference in
14 CFR 71.1 of the Federal Aviation
Administration Order 7400.9N,
Airspace Designations and Reporting
Points, dated September 1, 2005, and
Effective, September 16, 2005, is
amended as follows:
Paragraph 6005 Class E airspace areas
extending upward from 700 feet or more
above the surface of the earth.
*
*
*
*
*
AWP CA E5 Palm Springs, CA [Amended]
Palm Springs International Airport
(Lat. 33°49′46″ N, long, 116°30′24″ W)
That airspace extending upward from 700
feet above the surface beginning at lat.
34°05′00″ N, long. 116°34′03″ W; to lat.
34°08′00″ N, long. 116°30′00″ W; to lat.
34°06′42″ N, long. 116°28′49″ W; to lat.
34°03′00″ N, long. 116°31′00″ W; to lat.
33°42′45″ N, long. 115°53′34″ W; to lat.
33°26′00″ N, long. 116°09′33″ W; to lat.
33°55′00″ N, long. 116°46′03″ W, to the point
of beginnning.
*
*
*
*
*
Issued in Los Angeles, California, on
December 22, 2005.
Stephen J. Lloyd,
Acting Area Director, Western Terminal
Operations.
[FR Doc. 06–97 Filed 1–5–06; 8:45 am]
BILLING CODE 4910–13–M
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
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[EPA–R03–OAR–2005–VA–0015; FRL–8019–
8]
Approval and Promulgation of Air
Quality Implementation Plans; Virginia;
NSR in the Ozone Transport Region
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
SUMMARY: This action is being taken
under the Clean Air Act (CAA or the
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14:58 Jan 05, 2006
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Act). EPA is proposing to approve a
State Implementation Plan (SIP)
revision submitted by the
Commonwealth of Virginia. This
revision pertains to changes in the
State’s regulations that require
implementation of nonattainment New
Source Review (NSR) in the Ozone
Transport Region (OTR) locations in
Virginia.
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–0015 by one of the
following methods:
A. https://www.regulations.gov. Follow
the on-line instructions for submitting
comments.
B. E-mail: campbell.dave@epa.gov.
C. Mail: EPA–R03–OAR–2005–VA–
0015, David Campbell, Chief, Permits
and Technical Assessment Branch,
Mailcode 3AP11, 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.
Instructions: Direct your comments to
Docket ID No. EPA–R03–OAR–2005–
VA–0015. EPA’s policy is that all
comments received will be included in
the public docket without change, and
may be made available online at https://
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,
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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 https://
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:
Sharon McCauley, (215) 814–3376, or by
e-mail at mccauley.sharon@epa.gov.
On March
28, 2005, the Virginia Department of
Environmental Quality submitted a SIP
revision approval request entitled, ‘‘NSR
in the Ozone Transport Region (OTR).’’
The applicable regulations requiring
implementation of nonattainment NSR
in the Virginia portion of the OTR were
adopted by the Virginia State Air
Pollution Control Board on September
29, 2004.
SUPPLEMENTARY INFORMATION:
I. Background
The Clean Air Act requires that 13
states including the District of Columbia
submit revisions to their State
Implementation Plans that will require
major new and major modified sources
of volatile organic compounds (VOC) or
nitrogen oxides (NOX) to meet certain
new source review (NSR) requirements
if they are located (or are proposing to
locate) in the Ozone Transport Region.
Section 184 of the Act establishes the
OTR, which consists of the states of
Connecticut, Delaware, Maine,
Maryland, Massachusetts, New
Hampshire, New Jersey, New York,
Pennsylvania, Rhode Island, Vermont,
and the Consolidated Metropolitan
Statistical Area that includes the District
of Columbia and portions of Virginia.
The areas designated as in the Virginia
portion of the OTR are as follows:
Arlington County, Fairfax County,
Loudoun County, Prince William
County, Stafford County, Alexandria
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City, Fairfax City, Falls Church City,
Manassas City, and Manassas Park City.
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II. Summary of SIP Revision
The Commonwealth of Virginia
amended its regulations to clarify that
areas located in the Virginia portion of
the OTR must meet the requirements of
Virginia Code Article 9 VAC 5 Chapter
80 (Permits for Major Stationary Sources
and Major Modifications Locating in
Nonattainment Areas) as if they were
classified as moderate nonattainment for
ozone, except that the threshold for
major stationary sources of VOCs would
be 50 tons instead of 100 tons. The
changes that are reflected in this
requested SIP revision are those that
identify and define the OTR locations in
Virginia while providing direction to
what State regulations sources will need
to follow when they are either planning
to locate in or are already located in the
Virginia portion of the OTR. Changes
were made to the State provisions at 9
VAC 5–80–2000, Applicability and 9
VAC 5–80–2010, Definitions.
Sources in the Virginia portion of the
OTR are also required to meet offset
requirements in 9 VAC 5–80–2120 B 2
for areas classified as moderate
nonattainment for ozone. These
provisions require all increases of VOC
and/or NOX emissions attributable to
the new or modified source to be offset
with emission reductions elsewhere in
the Virginia portion of the OTR at a ratio
of 1.15 to 1.00.
The SIP revision will amend the SIP
to add new regulatory language
indicating that sources in the Virginia
portion of the OTR are subject to the
requirements of 9 VAC 5–80–2000, et
seq. regardless of the nonattainment
status of the area where the source is
located. The SIP revision also provides
that sources located or planning to
locate in areas within the OTR that are
classified as ‘‘serious’’ or ‘‘severe’’
nonattainment areas are required to
meet the respective emission thresholds
listed within the State’s definition of a
‘‘major stationary source’’ at 9 VAC
5–80–2010 C Section a(1) and (2) and
the more restrictive offset requirements
located in 9 VAC 5–80–2120 B 3 and B
4, respectively.
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
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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
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
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891
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
NSR 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 this action will have a
beneficial effect on air quality by
reducing emissions in the Ozone
Transport Region. EPA is proposing to
approve the Virginia SIP revision for
NSR in the Ozone Transport Region,
which was submitted on March 28,
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
significantly or uniquely affect small
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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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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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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:
E:\FR\FM\06JAP1.SGM
06JAP1
Agencies
[Federal Register Volume 71, Number 4 (Friday, January 6, 2006)]
[Proposed Rules]
[Pages 890-892]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-37]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2005-VA-0015; FRL-8019-8]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; NSR in the Ozone Transport Region
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This action is being taken under the Clean Air Act (CAA or the
Act). EPA is proposing to approve a State Implementation Plan (SIP)
revision submitted by the Commonwealth of Virginia. This revision
pertains to changes in the State's regulations that require
implementation of nonattainment New Source Review (NSR) in the Ozone
Transport Region (OTR) locations in Virginia.
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-0015 by one of the following methods:
A. https://www.regulations.gov. Follow the on-line instructions for
submitting comments.
B. E-mail: campbell.dave@epa.gov.
C. Mail: EPA-R03-OAR-2005-VA-0015, David Campbell, Chief, Permits
and Technical Assessment Branch, Mailcode 3AP11, 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-0015. EPA's policy is that all comments received will be
included in the public docket without change, and may be made available
online at https://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 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 https://
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: Sharon McCauley, (215) 814-3376, or by
e-mail at mccauley.sharon@epa.gov.
SUPPLEMENTARY INFORMATION: On March 28, 2005, the Virginia Department
of Environmental Quality submitted a SIP revision approval request
entitled, ``NSR in the Ozone Transport Region (OTR).'' The applicable
regulations requiring implementation of nonattainment NSR in the
Virginia portion of the OTR were adopted by the Virginia State Air
Pollution Control Board on September 29, 2004.
I. Background
The Clean Air Act requires that 13 states including the District of
Columbia submit revisions to their State Implementation Plans that will
require major new and major modified sources of volatile organic
compounds (VOC) or nitrogen oxides (NOX) to meet certain new
source review (NSR) requirements if they are located (or are proposing
to locate) in the Ozone Transport Region.
Section 184 of the Act establishes the OTR, which consists of the
states of Connecticut, Delaware, Maine, Maryland, Massachusetts, New
Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont,
and the Consolidated Metropolitan Statistical Area that includes the
District of Columbia and portions of Virginia. The areas designated as
in the Virginia portion of the OTR are as follows: Arlington County,
Fairfax County, Loudoun County, Prince William County, Stafford County,
Alexandria
[[Page 891]]
City, Fairfax City, Falls Church City, Manassas City, and Manassas Park
City.
II. Summary of SIP Revision
The Commonwealth of Virginia amended its regulations to clarify
that areas located in the Virginia portion of the OTR must meet the
requirements of Virginia Code Article 9 VAC 5 Chapter 80 (Permits for
Major Stationary Sources and Major Modifications Locating in
Nonattainment Areas) as if they were classified as moderate
nonattainment for ozone, except that the threshold for major stationary
sources of VOCs would be 50 tons instead of 100 tons. The changes that
are reflected in this requested SIP revision are those that identify
and define the OTR locations in Virginia while providing direction to
what State regulations sources will need to follow when they are either
planning to locate in or are already located in the Virginia portion of
the OTR. Changes were made to the State provisions at 9 VAC 5-80-2000,
Applicability and 9 VAC 5-80-2010, Definitions.
Sources in the Virginia portion of the OTR are also required to
meet offset requirements in 9 VAC 5-80-2120 B 2 for areas classified as
moderate nonattainment for ozone. These provisions require all
increases of VOC and/or NOX emissions attributable to the
new or modified source to be offset with emission reductions elsewhere
in the Virginia portion of the OTR at a ratio of 1.15 to 1.00.
The SIP revision will amend the SIP to add new regulatory language
indicating that sources in the Virginia portion of the OTR are subject
to the requirements of 9 VAC 5-80-2000, et seq. regardless of the
nonattainment status of the area where the source is located. The SIP
revision also provides that sources located or planning to locate in
areas within the OTR that are classified as ``serious'' or ``severe''
nonattainment areas are required to meet the respective emission
thresholds listed within the State's definition of a ``major stationary
source'' at 9 VAC 5-80-2010 C Section a(1) and (2) and the more
restrictive offset requirements located in 9 VAC 5-80-2120 B 3 and B 4,
respectively.
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
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 NSR 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 this action will have a
beneficial effect on air quality by reducing emissions in the Ozone
Transport Region. EPA is proposing to approve the Virginia SIP revision
for NSR in the Ozone Transport Region, which was submitted on March 28,
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 significantly or uniquely affect
small
[[Page 892]]
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
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]
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