Approval and Promulgation of Air Quality Implementation Plans; Virginia; Section 110(a)(1) 8-Hour Ozone Maintenance Plan for the White Top Mountain, Smyth County, VA 1-Hour Ozone Nonattainment Area, 10201-10203 [E8-3358]
Download as PDF
Federal Register / Vol. 73, No. 38 / Tuesday, February 26, 2008 / Proposed Rules
7. Section 102.62 is amended by
adding a new paragraph (d) to read as
follows:
§ 102.62
Consent-election agreements.
jlentini on PROD1PC65 with PROPOSALS
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(d) Where a petition for certification
consenting to an election has been duly
filed jointly by a labor organization and
an employer pursuant to § 102.60(b) and
102.61(c), and it appears to the Regional
Director that the information provided
on the petition is accurate and sufficient
and that the bargaining unit description
is appropriate on its face and not
contrary to any statutory provision, the
petition will be docketed. Within 3 days
of the docketing of the petition, the
Regional Director will advise the parties
of his/her approval of their request for
an election. The parties’ agreement as to
the date, place, and hours of the election
will be approved by the Regional
Director, absent extraordinary
circumstances. Also within 3 days of the
docketing of the petition, the Regional
Director will send to the employer
official NLRB notices, informing
employees that the joint petition for
certification has been filed and
specifying the date, place, and hours of
the election. These notices must be
posted by the employer in conspicuous
places where notices to employees are
customarily posted and must remain
posted through the election. Failure to
post these notices as required herein
shall be grounds for setting aside the
election whenever proper and timely
objections are filed under the provisions
of § 102.69(a). In addition to these
notices, the employer must also post
copies of the Board’s official Notice of
Election in conspicuous places at least
3 full working days prior to 12:01 a.m.
of the day of the election, as required
under § 103.20. Any motions to
intervene may be filed with the Regional
Director in accordance with § 102.65,
except that any such motion must be
filed within 14 days from the docketing
of the petition. The filing of an unfair
labor practice charge will not serve to
block the election or cause the ballots
cast in the election to be impounded,
but will be handled in conjunction with
any post-election proceedings in
accordance with § 102.69. The election
shall be conducted under the direction
and supervision of the Regional
Director. The method of conducting the
election shall be consistent with the
method followed by the Regional
Director in conducting elections
pursuant to § 102.69 and 102.70 except
that the rulings and determinations by
the Regional Director of the results
thereof shall be final, and the Regional
Director shall issue to the parties a
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certification of the results of the
election, including certifications of
representative where appropriate, with
the same force and effect as if issued by
the Board, provided further that rulings
or determinations by the Regional
Director in respect to any amendment of
such certification shall also be final.
Dated: Washington, DC, February 11, 2008.
By direction of the Board.
Lester A. Heltzer,
Executive Secretary.
[FR Doc. E8–2767 Filed 2–25–08; 8:45 am]
BILLING CODE 7545–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2007–1068; FRL–8531–9]
Approval and Promulgation of Air
Quality Implementation Plans; Virginia;
Section 110(a)(1) 8-Hour Ozone
Maintenance Plan for the White Top
Mountain, Smyth County, VA
1-Hour Ozone Nonattainment Area
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 a 10-year
maintenance plan for the White Top
Mountain 1-hour ozone nonattainment
area located in Smyth County, Virginia.
This action is being taken under the
Clean Air Act (CAA).
DATES: Written comments must be
received on or before March 27, 2008.
ADDRESSES: Submit your comments,
identified by Docket ID Number EPA–
R03–OAR–2007–1068 by one of the
following methods:
A. https://www.regulations.gov. Follow
the on-line instructions for submitting
comments.
B. E-mail:
fernandez.cristina@epa.gov.
C. Mail: EPA–R03–OAR–2007–1068,
Cristina Fernandez, Chief, Air Quality
Planning Branch, Mailcode 3AP21, U.S.
Environmental Protection Agency,
Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103.
D. Hand Delivery: At the previously
listed EPA Region III address. Such
deliveries are only accepted during the
Docket’s normal hours of operation, and
special arrangements should be made
for deliveries of boxed information.
Instructions: Direct your comments to
Docket ID No. EPA–R03–OAR–2007–
PO 00000
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10201
1068. EPA’s policy is that all comments
received will be included in the public
docket without change, and may be
made available online at 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 https://
www.regulations.gov or e-mail. The
https://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 https://
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
https://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:
Irene Shandruk, (215) 814–2166, or by
e-mail at shandruk.irene@epa.gov.
SUPPLEMENTARY INFORMATION: On August
6, 2007, the Virginia Department of
Environmental Quality (VADEQ)
submitted a revision to its (SIP) for
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Federal Register / Vol. 73, No. 38 / Tuesday, February 26, 2008 / Proposed Rules
approval of the section 110(a)(1) 8-hour
ozone maintenance plan for White Top
Mountain, Smyth County, Virginia.
jlentini on PROD1PC65 with PROPOSALS
I. Background
Section 110(a)(1) of the Clean Air Act
(CAA or Act) requires that areas that
were either nonattainment or
attainment/unclassifiable with an
approved 175A maintenance plan for
the 1-hour ozone National Ambient Air
Quality Standard (NAAQS), and
attainment for the 8-hour ozone NAAQS
submit a plan to demonstrate the
continued maintenance of the 8-hour
ozone NAAQS. These plans were due to
EPA on June 15, 2007, three years after
the effective date of the initial 8-hour
ozone designations.
On May 20, 2005, EPA issued the
Maintenance Plan Guidance Document
for Certain 8-Hour Ozone Areas Under
section 110(a)(1) of the Clean Air Act.
The purpose of the guidance is to assist
the states in the development of a SIP
which addresses the maintenance
requirements found in section 110(a)(1)
of the CAA. There are five components
of the section 110(a)(1) maintenance
plan which are: (1) An attainment
inventory, which is based on actual
typical summer day emissions of
volatile organic compounds (VOCs) and
oxides of nitrogen (NOX) for a ten-year
period from a base year as chosen by the
state; (2) a maintenance demonstration
which shows how the area will remain
in compliance with the 8-hour ozone
standard for 10 years after the effective
date of designations (June 15, 2004); (3)
a commitment to continue to operate air
quality monitors; (4) a contingency plan
that will ensure that a violation of the
8-hour ozone NAAQS is promptly
addressed; and (5) an explanation of
how the State will track the progress of
the maintenance plan.
II. Summary of SIP Revision
The Virginia Department of
Environmental Quality (VADEQ) 8-hour
ozone maintenance plan addresses the
components of the section 110(a)(1) 8hour ozone maintenance plan as
outlined in EPA’s May 20, 2005
guidance. Virginia has requested
approval of a revision consisting of a 10year maintenance plan under section
110(a)(1) for the White Top Mountain 1hour ozone nonattainment area located
in Smyth County, Virginia.
VADEQ addressed the section
110(a)(1) guidance components as
follows:
Emissions Inventory: VADEQ
provided an explanation describing that
White Top Mountain has no
anthropogenic emissions, and since the
guidance document states that
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projecting emissions and demonstrating
maintenance for 10 years is not required
for areas where there are essentially no
anthropogenic emissions, emissions
projections are not necessary, and
thereby, not included in this
maintenance plan.
Maintenance Demonstration and
Tracking Progress: The demonstration
should show how the area will remain
in compliance with the 8-hour ozone
standard for 10 years following the base
year following the effective date of
designation (June 15, 2004). This is
usually accomplished by a
demonstration that the area will have
emissions that are equal to or below the
emissions inventories of VOC and NOX
for this 10-year period. Since White Top
Mountain has no anthropogenic
emissions, and since the guidance
indicates that a maintenance
demonstration is not necessary for areas
with essentially no anthropogenic
emissions, a maintenance
demonstration has not been included in
this maintenance plan.
Ambient Air Quality Monitoring: The
state should continue to operate air
quality monitors in accordance with 40
CFR Part 58 to verify maintenance of the
8-hour ozone standard. Virginia,
however, has never operated monitors
on White Top Mountain. All of the
monitors at this site were part of studies
either managed by the Tennessee Valley
Authority or EPA’s Office of Research
and Development, but these monitoring
studies have ceased since 1999. Virginia
does not have any monitors in place to
operate nor does the Commonwealth
plan on establishing a monitoring site.
This is so for reasons which include the
following: (1) There are no
anthropogenic emissions at this site, (2)
the very remote location of this
nonattainment area, and (3) establishing
a monitoring site would be costprohibitive.
Contingency Measures: The guidance
indicates that most areas must develop
a contingency plan that will ensure any
violation of the 8-hour ozone NAAQS is
promptly corrected. The guidance also
states that for areas that have essentially
no anthropogenic emissions, having a
maintenance plan with contingency
measures would be an ‘‘absurd’’
outcome. Therefore, contingency
measures are not necessary, and
thereby, not included in this
maintenance plan.
Verification of Continued Attainment:
Since emissions projections depend on
assumptions of point, area, and mobile
sources emissions, the guidance
indicates that the state should indicate
how it will track the progress of the
maintenance plan. However, since the
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guidance specifically notes that
emissions inventories and contingency
measures are not necessary for areas
where there are essentially no
anthropogenic emissions, verification of
these requirements is also not necessary,
and therefore, not included in the
maintenance plan.
The VADEQ is requesting approval of
their SIP revision which consists of a
10-year maintenance plan under section
110(a)(1) for the White Top Mountain 1hour ozone nonattainment area located
in Smyth County, Virginia.
III. General Information Pertaining to
SIP Submittals From the
Commonwealth of Virginia
In 1995, Virginia adopted legislation
that provides, subject to certain
conditions, for an environmental
assessment (audit) ‘‘privilege’’ for
voluntary compliance evaluations
performed by a regulated entity. The
legislation further addresses the relative
burden of proof for parties either
asserting the privilege or seeking
disclosure of documents for which the
privilege is claimed. Virginia’s
legislation also provides, subject to
certain conditions, for a penalty waiver
for violations of environmental laws
when a regulated entity discovers such
violations pursuant to a voluntary
compliance evaluation and voluntarily
discloses such violations to the
Commonwealth and takes prompt and
appropriate measures to remedy the
violations. Virginia’s Voluntary
Environmental Assessment Privilege
Law, Va. Code Sec. 10.1–1198, provides
a privilege that protects from disclosure
documents and information about the
content of those documents that are the
product of a voluntary environmental
assessment. The Privilege Law does not
extend to documents or information (1)
that are generated or developed before
the commencement of a voluntary
environmental assessment; (2) that are
prepared independently of the
assessment process; (3) that demonstrate
a clear, imminent and substantial
danger to the public health or
environment; or (4) that are required by
law.
On January 12, 1998, the
Commonwealth of Virginia Office of the
Attorney General provided a legal
opinion that states that the Privilege
law, Va. Code Sec. 10.1–1198, precludes
granting a privilege to documents and
information ‘‘required by law,’’
including documents and information
‘‘required by Federal law to maintain
program delegation, authorization or
approval,’’ since Virginia must ‘‘enforce
Federally authorized environmental
programs in a manner that is no less
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Federal Register / Vol. 73, No. 38 / Tuesday, February 26, 2008 / Proposed Rules
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
afforded from administrative, civil, or
criminal penalties because granting
such immunity would not be consistent
with Federal law, which is one of the
criteria for immunity.’’
Therefore, EPA has determined that
Virginia’s Privilege and Immunity
statutes will not preclude the
Commonwealth from enforcing its
program consistent with the Federal
requirements. In any event, because
EPA has also determined that a state
audit privilege and immunity law can
affect only state enforcement and cannot
have any impact on Federal
enforcement authorities, EPA may at
any time invoke its authority under the
CAA, including, for example, sections
113, 167, 205, 211 or 213, to enforce the
requirements or prohibitions of the state
plan, independently of any state
enforcement effort. In addition, citizen
enforcement under section 304 of the
CAA is likewise unaffected by this, or
any, state audit privilege or immunity
law.
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IV. Proposed Action
EPA’s review of this material
indicates that Virginia has addressed the
components of a maintenance plan
pursuant to EPA’s May 20, 2005
guidance. EPA is proposing to approve
the Virginia SIP revision for White Top
Mountain, Smyth County, Virginia,
which was submitted on August 6,
2007. EPA is soliciting public comments
on the issues discussed in this
document. These comments will be
considered before taking final action.
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17:16 Feb 25, 2008
Jkt 214001
V. Statutory and Executive Order
Reviews
Under Executive Order 12866 (58 FR
51735, October 4, 1993), this proposed
action is not a ‘‘significant regulatory
action’’ and therefore is not subject to
review by the Office of Management and
Budget. For this reason, this action is
also not subject to Executive Order
13211, ‘‘Actions Concerning Regulations
That Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355, May
22, 2001). This action merely proposes
to approve state law as meeting Federal
requirements and imposes no additional
requirements beyond those imposed by
state law. Accordingly, the
Administrator certifies that this
proposed rule will not have a significant
economic impact on a substantial
number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601
et seq.). Because this rule proposes to
approve pre-existing requirements
under state law and does not impose
any additional enforceable duty beyond
that required by state law, it does not
contain any unfunded mandate or
significantly or uniquely affect small
governments, as described in the
Unfunded Mandates Reform Act of 1995
(Pub. L. 104–4). This proposed rule also
does not have a substantial direct effect
on one or more Indian tribes, on the
relationship between the Federal
Government and Indian tribes, or on the
distribution of power and
responsibilities between the Federal
Government and Indian tribes, as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will
it have substantial direct effects on the
States, on the relationship between the
national government and the States, or
on the distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132 (64 FR 43255,
August 10, 1999), because it merely
proposes to approve a state rule
implementing a Federal requirement,
and does not alter the relationship or
the distribution of power and
responsibilities established in the CAA.
This proposed rule also is not subject to
Executive Order 13045 (62 FR 19885,
April 23, 1997), because it approves a
state rule implementing a Federal
standard.
In reviewing SIP submissions, EPA(s
role is to approve state choices,
provided that they meet the criteria of
the CAA. In this context, in the absence
of a prior existing requirement for the
State to use voluntary consensus
standards (VCS), EPA has no authority
to disapprove a SIP submission for
failure to use VCS. It would thus be
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10203
inconsistent with applicable law for
EPA, when it reviews a SIP submission,
to use VCS in place of a SIP submission
that otherwise satisfies the provisions of
the CAA. Thus, the requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not
apply. As required by section 3 of
Executive Order 12988 (61 FR 4729,
February 7, 1996), in issuing this
proposed rule, EPA has taken the
necessary steps to eliminate drafting
errors and ambiguity, minimize
potential litigation, and provide a clear
legal standard for affected conduct. EPA
has complied with Executive Order
12630 (53 FR 8859, March 15, 1988) by
examining the takings implications of
the rule in accordance with the
(Attorney General(s Supplemental
Guidelines for the Evaluation of Risk
and Avoidance of Unanticipated
Takings( issued under the executive
order.
This action proposing approval of
Virginia’s SIP revision request
consisting of a 10-year maintenance
plan under § 110(a)(1) for the White Top
Mountain 1-hour ozone nonattainment
area located in Smyth County, Virginia
does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone,
Reporting and recordkeeping
requirements, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: February 12, 2008.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. E8–3358 Filed 2–25–08; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2007–0646; FRL–8526–9]
Approval and Promulgation of State
Implementation Plans; Montana;
Interstate Transport of Pollution, New
Definitions of PM and PM2.5
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
SUMMARY: EPA is proposing to approve
State Implementation Plan (SIP)
E:\FR\FM\26FEP1.SGM
26FEP1
Agencies
[Federal Register Volume 73, Number 38 (Tuesday, February 26, 2008)]
[Proposed Rules]
[Pages 10201-10203]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-3358]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2007-1068; FRL-8531-9]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Section 110(a)(1) 8-Hour Ozone Maintenance Plan for the White
Top Mountain, Smyth County, VA 1-Hour Ozone Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP)
revision submitted by the Commonwealth of Virginia. This revision
pertains to a 10-year maintenance plan for the White Top Mountain 1-
hour ozone nonattainment area located in Smyth County, Virginia. This
action is being taken under the Clean Air Act (CAA).
DATES: Written comments must be received on or before March 27, 2008.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2007-1068 by one of the following methods:
A. https://www.regulations.gov. Follow the on-line instructions for
submitting comments.
B. E-mail: fernandez.cristina@epa.gov.
C. Mail: EPA-R03-OAR-2007-1068, Cristina Fernandez, Chief, Air
Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
D. Hand Delivery: At the previously listed EPA Region III address.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2007-1068. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at 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 https://
www.regulations.gov or e-mail. The https://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 https://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
https://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: Irene Shandruk, (215) 814-2166, or by
e-mail at shandruk.irene@epa.gov.
SUPPLEMENTARY INFORMATION: On August 6, 2007, the Virginia Department
of Environmental Quality (VADEQ) submitted a revision to its (SIP) for
[[Page 10202]]
approval of the section 110(a)(1) 8-hour ozone maintenance plan for
White Top Mountain, Smyth County, Virginia.
I. Background
Section 110(a)(1) of the Clean Air Act (CAA or Act) requires that
areas that were either nonattainment or attainment/unclassifiable with
an approved 175A maintenance plan for the 1-hour ozone National Ambient
Air Quality Standard (NAAQS), and attainment for the 8-hour ozone NAAQS
submit a plan to demonstrate the continued maintenance of the 8-hour
ozone NAAQS. These plans were due to EPA on June 15, 2007, three years
after the effective date of the initial 8-hour ozone designations.
On May 20, 2005, EPA issued the Maintenance Plan Guidance Document
for Certain 8-Hour Ozone Areas Under section 110(a)(1) of the Clean Air
Act. The purpose of the guidance is to assist the states in the
development of a SIP which addresses the maintenance requirements found
in section 110(a)(1) of the CAA. There are five components of the
section 110(a)(1) maintenance plan which are: (1) An attainment
inventory, which is based on actual typical summer day emissions of
volatile organic compounds (VOCs) and oxides of nitrogen
(NOX) for a ten-year period from a base year as chosen by
the state; (2) a maintenance demonstration which shows how the area
will remain in compliance with the 8-hour ozone standard for 10 years
after the effective date of designations (June 15, 2004); (3) a
commitment to continue to operate air quality monitors; (4) a
contingency plan that will ensure that a violation of the 8-hour ozone
NAAQS is promptly addressed; and (5) an explanation of how the State
will track the progress of the maintenance plan.
II. Summary of SIP Revision
The Virginia Department of Environmental Quality (VADEQ) 8-hour
ozone maintenance plan addresses the components of the section
110(a)(1) 8-hour ozone maintenance plan as outlined in EPA's May 20,
2005 guidance. Virginia has requested approval of a revision consisting
of a 10-year maintenance plan under section 110(a)(1) for the White Top
Mountain 1-hour ozone nonattainment area located in Smyth County,
Virginia.
VADEQ addressed the section 110(a)(1) guidance components as
follows:
Emissions Inventory: VADEQ provided an explanation describing that
White Top Mountain has no anthropogenic emissions, and since the
guidance document states that projecting emissions and demonstrating
maintenance for 10 years is not required for areas where there are
essentially no anthropogenic emissions, emissions projections are not
necessary, and thereby, not included in this maintenance plan.
Maintenance Demonstration and Tracking Progress: The demonstration
should show how the area will remain in compliance with the 8-hour
ozone standard for 10 years following the base year following the
effective date of designation (June 15, 2004). This is usually
accomplished by a demonstration that the area will have emissions that
are equal to or below the emissions inventories of VOC and
NOX for this 10-year period. Since White Top Mountain has no
anthropogenic emissions, and since the guidance indicates that a
maintenance demonstration is not necessary for areas with essentially
no anthropogenic emissions, a maintenance demonstration has not been
included in this maintenance plan.
Ambient Air Quality Monitoring: The state should continue to
operate air quality monitors in accordance with 40 CFR Part 58 to
verify maintenance of the 8-hour ozone standard. Virginia, however, has
never operated monitors on White Top Mountain. All of the monitors at
this site were part of studies either managed by the Tennessee Valley
Authority or EPA's Office of Research and Development, but these
monitoring studies have ceased since 1999. Virginia does not have any
monitors in place to operate nor does the Commonwealth plan on
establishing a monitoring site. This is so for reasons which include
the following: (1) There are no anthropogenic emissions at this site,
(2) the very remote location of this nonattainment area, and (3)
establishing a monitoring site would be cost-prohibitive.
Contingency Measures: The guidance indicates that most areas must
develop a contingency plan that will ensure any violation of the 8-hour
ozone NAAQS is promptly corrected. The guidance also states that for
areas that have essentially no anthropogenic emissions, having a
maintenance plan with contingency measures would be an ``absurd''
outcome. Therefore, contingency measures are not necessary, and
thereby, not included in this maintenance plan.
Verification of Continued Attainment: Since emissions projections
depend on assumptions of point, area, and mobile sources emissions, the
guidance indicates that the state should indicate how it will track the
progress of the maintenance plan. However, since the guidance
specifically notes that emissions inventories and contingency measures
are not necessary for areas where there are essentially no
anthropogenic emissions, verification of these requirements is also not
necessary, and therefore, not included in the maintenance plan.
The VADEQ is requesting approval of their SIP revision which
consists of a 10-year maintenance plan under section 110(a)(1) for the
White Top Mountain 1-hour ozone nonattainment area located in Smyth
County, Virginia.
III. General Information Pertaining to SIP Submittals From the
Commonwealth of Virginia
In 1995, Virginia adopted legislation that provides, subject to
certain conditions, for an environmental assessment (audit)
``privilege'' for voluntary compliance evaluations performed by a
regulated entity. The legislation further addresses the relative burden
of proof for parties either asserting the privilege or seeking
disclosure of documents for which the privilege is claimed. Virginia's
legislation also provides, subject to certain conditions, for a penalty
waiver for violations of environmental laws when a regulated entity
discovers such violations pursuant to a voluntary compliance evaluation
and voluntarily discloses such violations to the Commonwealth and takes
prompt and appropriate measures to remedy the violations. Virginia's
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and
information about the content of those documents that are the product
of a voluntary environmental assessment. The Privilege Law does not
extend to documents or information (1) that are generated or developed
before the commencement of a voluntary environmental assessment; (2)
that are prepared independently of the assessment process; (3) that
demonstrate a clear, imminent and substantial danger to the public
health or environment; or (4) that are required by law.
On January 12, 1998, the Commonwealth of Virginia Office of the
Attorney General provided a legal opinion that states that the
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege
to documents and information ``required by law,'' including documents
and information ``required by Federal law to maintain program
delegation, authorization or approval,'' since Virginia must ``enforce
Federally authorized environmental programs in a manner that is no less
[[Page 10203]]
stringent than their Federal counterparts. * * *''. The opinion
concludes that ``[r]egarding Sec. 10.1-1198, therefore, documents or
other information needed for civil or criminal enforcement under one of
these programs could not be privileged because such documents and
information are essential to pursuing enforcement in a manner required
by Federal law to maintain program delegation, authorization or
approval.''
Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that
``[t]o the extent consistent with requirements imposed by Federal
law,'' any person making a voluntary disclosure of information to a
state agency regarding a violation of an environmental statute,
regulation, permit, or administrative order is granted immunity from
administrative or civil penalty. The Attorney General's January 12,
1998 opinion states that the quoted language renders this statute
inapplicable to enforcement of any Federally authorized programs, since
``no immunity could be afforded from administrative, civil, or criminal
penalties because granting such immunity would not be consistent with
Federal law, which is one of the criteria for immunity.''
Therefore, EPA has determined that Virginia's Privilege and
Immunity statutes will not preclude the Commonwealth from enforcing its
program consistent with the Federal requirements. In any event, because
EPA has also determined that a state audit privilege and immunity law
can affect only state enforcement and cannot have any impact on Federal
enforcement authorities, EPA may at any time invoke its authority under
the CAA, including, for example, sections 113, 167, 205, 211 or 213, to
enforce the requirements or prohibitions of the state plan,
independently of any state enforcement effort. In addition, citizen
enforcement under section 304 of the CAA is likewise unaffected by
this, or any, state audit privilege or immunity law.
IV. Proposed Action
EPA's review of this material indicates that Virginia has addressed
the components of a maintenance plan pursuant to EPA's May 20, 2005
guidance. EPA is proposing to approve the Virginia SIP revision for
White Top Mountain, Smyth County, Virginia, which was submitted on
August 6, 2007. EPA is soliciting public comments on the issues
discussed in this document. These comments will be considered before
taking final action.
V. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a ``significant regulatory action'' and
therefore is not subject to review by the Office of Management and
Budget. For this reason, this action is also not subject to Executive
Order 13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This
action merely proposes to approve state law as meeting Federal
requirements and imposes no additional requirements beyond those
imposed by state law. Accordingly, the Administrator certifies that
this proposed rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-
existing requirements under state law and does not impose any
additional enforceable duty beyond that required by state law, it does
not contain any unfunded mandate or significantly or uniquely affect
small governments, as described in the Unfunded Mandates Reform Act of
1995 (Pub. L. 104-4). This proposed rule also does not have a
substantial direct effect on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will it have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132 (64 FR 43255, August 10, 1999), because it
merely proposes to approve a state rule implementing a Federal
requirement, and does not alter the relationship or the distribution of
power and responsibilities established in the CAA. This proposed rule
also is not subject to Executive Order 13045 (62 FR 19885, April 23,
1997), because it approves a state rule implementing a Federal
standard.
In reviewing SIP submissions, EPA(s role is to approve state
choices, provided that they meet the criteria of the CAA. In this
context, in the absence of a prior existing requirement for the State
to use voluntary consensus standards (VCS), EPA has no authority to
disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the CAA. Thus, the requirements of section
12(d) of the National Technology Transfer and Advancement Act of 1995
(15 U.S.C. 272 note) do not apply. As required by section 3 of
Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this
proposed rule, EPA has taken the necessary steps to eliminate drafting
errors and ambiguity, minimize potential litigation, and provide a
clear legal standard for affected conduct. EPA has complied with
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the
takings implications of the rule in accordance with the (Attorney
General(s Supplemental Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings( issued under the executive order.
This action proposing approval of Virginia's SIP revision request
consisting of a 10-year maintenance plan under Sec. 110(a)(1) for the
White Top Mountain 1-hour ozone nonattainment area located in Smyth
County, Virginia does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: February 12, 2008.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. E8-3358 Filed 2-25-08; 8:45 am]
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