**ENVIRONMENTAL PROTECTION AGENCY**

**40 CFR Part 52**

**\[EPA-R03-OAR-2007-1068; FRL- \]**

**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, Virginia 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 \[[insert date
30 days from date of publication]{.underline}\].

**ADDRESSES:** Submit your comments, identified by Docket ID Number
**EPA-R03-OAR-2007-1068** by one of the following methods:

A.  [www.regulations.gov]{.underline}. 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 [www.regulations.gov]{.underline}, 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]{.underline} or e-mail. The
[www.regulations.gov]{.underline} website is an Aanonymous 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]{.underline}, 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]{.underline} 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]{.underline} 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 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 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 (NO~x~) 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]{.underline}: 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]{.underline}: 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 NO~x~ 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]{.underline}: 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]{.underline}: 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]{.underline}: 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 Virgina**

In 1995, Virginia adopted legislation that provides, subject to certain
conditions, for an environmental assessment (audit) Aprivilege" 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 Arequired by law,@ including documents and information
Arequired by Federal law to maintain program delegation, authorization
or approval,@ since Virginia must Aenforce Federally authorized
environmental programs in a manner that is no less stringent than their
Federal counterparts. . . .@ The opinion concludes that A\[r\]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 A\[t\]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 Ano 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.

**III. 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.

**IV. 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]{.underline}.). 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
(Public Law 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
AAttorney 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]{.underline}.).

**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]{.underline}.

February 12, 2008 /s/

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Dated: Donald S. Welsh,

Regional Administrator,

Region III.