Approval and Promulgation of Air Quality Implementation Plans; Virginia; Approval of Removal of TSP Ambient Air Quality Standards

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is approving revisions to the Commonwealth of Virginia's State Implementation Plan (SIP). The revisions consist of the removal of references to total suspended particulates (TSP) from sections of the Commonwealth's regulations regarding ambient air quality standards and air pollution episode prevention. These revisions were submitted by the Commonwealth of Virginia, Department of Environmental Quality (VDEQ) as a revision to its SIP on April 21, 2000.

DATES:

This rule is effective on December 18, 2000 without further notice, unless EPA receives adverse written comment by November 20, 2000. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

Written comments should be mailed to Mr. Denis Lohman, Acting Chief, Technical Assessment Branch, Mailcode 3AP22, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the documents relevant to this action are available for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103; Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia, 23219.

FOR FURTHER INFORMATION CONTACT:

Ruth E. Knapp, (215) 814-2191, or by e-mail at knapp.ruth@epa.gov. While questions may be submitted via e-mail, any comments on this rulemaking action must be submitted, in writing, as indicated above.

SUPPLEMENTARY INFORMATION:

Throughout this document wherever “we,” “us” or “our” are used we mean EPA.

Table of Contents

I. What is EPA Approving?

II. What are the Provisions of the Revised Regulation?

III. What are the Environmental Effects of this Action?

IV. Special Provisions Related to Virginia.

V. EPA Rulemaking Action.

VI. Administrative Requirements.

I. What is EPA Approving?

We are approving, as a SIP revision, the removal of references to TSP ambient standards from Virginia's regulations found at Title 9 VAC 5 Chapters 30 and 70. Chapter 30 is entitled, Ambient Air Quality Standards, and Chapter 70 is entitled, Air Pollution Episode Prevention.

II. What are the Provisions of the Revised Regulation?

In 1987, EPA replaced the National Ambient Air Quality Standards (NAAQS) for TSP with NAAQS for particulate matter less than 10 micrometers in diameter (PM10). At that time, we determined that smaller particles (PM10) were responsible for health and welfare effects. Unlike larger particles, the smaller particles are able to enter the respiratory system. On July 1, 1988, the Commonwealth adopted the Federal NAAQS for PM10 at 9 VAC 5-30-60 . Likewise, Virginia adopted references to PM10 ambient levels in 9 VAC 5-70-40 “Episode determination.”

The SIP revision consists of the repeal of the entire text of 9 VAC 5-30-20 “Particulate matter (TSP)” to delete all references to TSP as a primary and secondary ambient standard. In addition, references to TSP ambient standards in 9 VAC 5-70-40 “Episode determination” are also being deleted. Although, these references to TSP ambient standards are being removed, the Commonwealth's regulations continue include the appropriate references to PM10.

III. What are the Environmental Effects of this Action?

The Commonwealth's regulations governing the control of fugitive dust of all sizes, including TSP, from various types of sources such as sand and gravel processing remain in effect. The removal of references to the former TSP ambient standards from 9 VAC -5-30-20 and 5-70-40 do not amend the Commonwealth's fugitive dust regulations. Therefore, no adverse environmental effects occur as the result of this SIP revision.

IV. Special Provisions Related to 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 demonstrates a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.

On January 12, 1997, 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 “regarding section 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, 1997 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.

V. EPA's Rulemaking Action

We are approving revisions to the Virginia SIP submitted on April 21, 2000. The revisions remove references to TSP ambient air quality standards and levels previously found at 9 VAC 5-30-20 and 9 VAC 5-70-40. We are publishing this action without prior proposal because we view this as a noncontroversial revision and anticipate no adverse comments. However, in a separate document in the “Proposed Rules” section of today's Federal Register, we are publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on December 18, 2000 without further notice unless we receive adverse comment by November 20, 2000. Should we receive such comments, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

VI. Administrative Requirements

A. General Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (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 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 rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

B. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

Under Section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 18, 2000. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action regarding the removal of references to TSP ambient standards and levels from 9 VAC 5-30-20 and 9 VAC 5-70-40 of the Commonwealth of Virginia's regulations may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Particulate matter
• Reporting and recordkeeping requirements

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52 continues to read as follows:

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

Subpart VV—Virginia

2. In § 52.2420, the entries for 9 VAC 5, Chapter 30, subsection 5-30-20 and Chapter 70, subsection 5-70-40 in the “EPA Approved Regulations in the Virginia SIP” table in paragraph (c) is revised to read as follows: