[Federal Register Volume 69, Number 249 (Wednesday, December 29, 2004)]
[Rules and Regulations]
[Pages 77909-77912]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-28357]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R03-OAR-2004-VA-0004; FRL-7853-1]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Excess Volatile Organic Compound and Nitrogen Oxides 
Emissions Fee Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve revisions to the 
Commonwealth of Virginia's (Virginia) State Implementation Plan (SIP) 
for ozone. The rule requires major stationary sources of volatile 
organic compounds (VOC) and nitrogen oxides (NO<INF>X</INF>) in the 
Virginia portion of the Metropolitan Washington D.C. Severe Ozone 
Nonattainment Area to pay a fee to the state if the area fails to 
attain the one-hour national ambient air quality standard for ozone by 
November 15, 2005. The fee must be paid beginning in 2006, and in each 
calendar year thereafter, until the area is redesignated to attainment 
for the pollutant ozone. Virginia submitted this rule on April 19, 
2004, pursuant to the requirements of Section 110 of the Clean Air Act.

DATES: This rule is effective on February 28, 2005 without further 
notice, unless EPA receives adverse written comment by January 28, 
2005. 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: Submit your comments, identified by Regional Material in 
EDocket (RME) ID Number R03-OAR-2004-VA by one of the following 
methods:
    A. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    B. Agency Web site: http://www.docket.epa.gov/rmepub/ RME, EPA's 
electronic public docket and comment system, is EPA's preferred method 
for receiving comments. Follow the on-line instructions for submitting 
comments.
    C. E-mail: <a href="/cdn-cgi/l/email-protection#91fcfee3e3f8e2bffcf0faf4f3f0d1f4e1f0bff6fee7"><span class="__cf_email__" data-cfemail="026f6d70706b712c6f6369676063426772632c656d74">[email protected]</span></a>.
    D. Mail: R03-OAR-2004-VA, Makeba Morris, Chief, Air Quality 
Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, 
Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
    E. 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 RME ID No. R03-OAR-2004-VA. 
EPA's policy is that all comments received will be included in the 
public docket without change, and may be made available online at 
http://www.docket.epa.gov/rmepub/, 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 RME, regulations.gov 
or e-mail. The EPA RME and the Federal regulations.gov websites are 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 RME or 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 
RME index at http://www.docket.epa.gov/rmepub/. 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 RME 
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 material to be 
incorporated by reference are available at the Air and Radiation Docket 
and Information Center, U.S. Environmental Protection Agency, 1301 
Constitution Avenue, NW, Room B108, Washington, DC 20460. 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: Catherine L. Magliocchetti, (215) 814-
2174, or by e-mail at <a href="/cdn-cgi/l/email-protection#8be6eaece7e2e4e8e8e3eeffffe2a5e8eaffe3eef9e2e5eecbeefbeaa5ece4fd"><span class="__cf_email__" data-cfemail="137e72747f7a7c70707b7667677a3d7072677b76617a7d76537663723d747c65">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 
    Throughout this document, ``we,'' ``us,'' and ``our'' refer to EPA. 
This supplementary information is organized as follows.

Table of Contents

I. What Final Action Is EPA Taking?
II. Who Has To Pay These Fees?
III. How Are the Fees Calculated?
IV. Is Virginia Required To Adopt an Excess Emission Fee Rule?
V. What Are the Exceptions to this Rule?
VI. What Impact Do Virginia's Privilege and Immunity Statutes Have 
on This Rule?
VII. Statutory and Executive Order Reviews

I. What Final Action Is EPA Taking?

    EPA is approving a revision to Virginia's ozone SIP. The SIP 
revision requires major stationary sources of VOC and NO<INF>X</INF> in 
the Virginia portion of the Metropolitan Washington D.C. Severe Ozone 
Nonattainment Area (Area) to pay a fee to the Commonwealth if the Area 
fails to attain the national ambient air quality standard (NAAQS) for 
ozone by November 15, 2005. The fee must be paid beginning in 2006 and 
in each calendar year thereafter, until the Area is redesignated to 
attainment for ozone. The payment is due by August 31 of each year.
    We are approving this rule because it is consistent with the 
requirements of the Clean Air Act (Act).
    EPA is publishing this rule without prior proposal because we view 
this as a noncontroversial amendment and anticipates no adverse 
comment, since no comments were received during the state's regulatory 
process. However, 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 February 28, 2005 without further notice 
unless EPA receives adverse comment by January 28, 2005. If EPA 
receives adverse comment, EPA will publish a timely withdrawal in the 
Federal Register informing the public that the rule will not take 
effect. EPA will address all

[[Page 77910]]

public comments in a subsequent final rule based on the proposed rule. 
EPA will not institute a second comment period on this action. Any 
parties interested in commenting must do so at this time.

II. Who Has To Pay These Fees?

    This rule applies to major stationary VOC and NO<INF>X</INF> 
sources located in the Virginia portion of the Metropolitan Washington 
DC Severe Ozone Nonattainment Area. At this time, the counties of 
Arlington, Fairfax, Loudon, and Prince William; and the cities of 
Alexandria, Fairfax, Falls Church, Manassas, and Manassas Park in 
Virginia are part of the Area, and are subject to this rule. Any owner 
of a major VOC or NO<INF>X</INF> stationary source, which is a 
stationary source that emits or has the potential to emit 25 tons or 
more per year of VOC or NO<INF>X</INF>, within the severe ozone 
nonattainment area is subject to this rule.

III. How Are the Fees Calculated?

    The fee is initially set at $5,000 per ton of VOC or NO<INF>X</INF> 
emitted by the source during the previous calendar year in excess of 
80% of the baseline amount. The fee is to be adjusted annually, 
beginning in 1991, by the percentage by which the consumer price index 
has been adjusted. The baseline is the lower of the source's actual or 
allowable VOC or NO<INF>X</INF> emissions during calendar year 2005. 
Virginia may calculate the baseline amount using a period of more than 
one year, provided the determination is consistent with Federal 
requirements.

IV. Is Virginia Required To Adopt an Excess Emission Fee Rule?

    Under sections 182(d)(3), 182(e), and 185 of the Clean Air Act (the 
Act), states are required to adopt an excess emissions fee regulation 
for ozone nonattainment areas classified as severe or extreme. This SIP 
revision requires major stationary sources of VOC in the nonattainment 
area to pay a fee to the state if the area fails to attain the standard 
by the attainment date set forth in the Act. In Virginia, the Northern 
Virginia area that is part of the Metropolitan Washington, DC ozone 
nonattainment area is classified as severe.
    Section 182(f) of the Act requires states to apply the same 
requirements to major stationary sources of oxides of nitrogen 
(NO<INF>X</INF>) as are applied to major stationary sources of VOC.

V. What Are the Exceptions to This Rule?

    As per section 185 of the Clean Air Act, the Commonwealth's SIP 
revision provides for an exception of the fee during any year that is 
treated as an extension year under section 181(a)(5) of the Clean Air 
Act.

VI. What Impact Do Virginia's Privilege and Immunity Statutes Have on 
This Rule?

    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 
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.

VII. Statutory and Executive Order Reviews

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. 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 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

[[Page 77911]]

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). This rule also 
does not have tribal implications because it will 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). This action also does not have Federalism 
implications because it does 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). This action 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 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (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. 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 February 28, 2005. 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 approval of the Commonwealth of Virginia's Excess VOC and NOx 
Emission Fee SIP revision, as required under Section 185 and 182(f) of 
the Clean Air Act, 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, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: December 14, 2004.
Donald S. Welsh,
Regional Administrator, Region III.
    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart VV-Virginia

0
2. In Sec.  52.2420, the table in paragraph (c) is amended by revising 
the paragraph title and paragraph heading, and adding entries for 
``Code of Virginia'' and ``Section 10.1-1316.1A. Through D.'' at the 
end of the table to read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (c) EPA-Approved Regulations and Statutes

                                 EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES
----------------------------------------------------------------------------------------------------------------
                                                             State
    State citation (9 VAC 5)          Title/subject        effective   EPA approval date    Explanation [former
                                                              date                             SIP citation]
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
--------------------------------
                                                Code of Virginia
----------------------------------------------------------------------------------------------------------------
Section 10.1-1316.1A. Through D  Severe ozone                  7/1/04  12/29/04.........  Provision authorizes
                                  nonattainment areas;                                     the Department of
                                  fees.                                                    Environmental Quality
                                                                                           (DEQ) to collect
                                                                                           Federal penalty fees
                                                                                           from major stationary
                                                                                           sources if the
                                                                                           nonattainment area
                                                                                           does not attain the
                                                                                           ozone standard by the
                                                                                           statutory attainment
                                                                                           date.
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[[Page 77912]]

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[FR Doc. 04-28357 Filed 12-28-04; 8:45 am]
BILLING CODE 6560-50-P


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