46672 Federal Register / Vol. 77, No. 151 / Monday, August 6, 2012 / Proposed Rules 

conform with the SIP. See 58 FR 62188. On 

November 30, 1993, EPA promulgated regulations, 

known as the General Conformity Regulations 

(applicable to everything else), to ensure that other 

federal actions also conformed to the SIPs. See 58 

FR 63214). 

the federal General Conformity 

regulations at 40 CFR 93, Subpart B. 

Particularly, Alabama’s May 2, 2011, 

SIP submission updates the IBR date at 

335–3–17.02 to July 1, 2010, to be 

consistent with federal General 

Conformity rules (as promulgated on 

April 5, 2010) and updates its 

Transportation Conformity SIP at 335– 

3–17–.01 effective May 23, 2011, to 

include EPA’s transportation conformity 

rule updates regarding implementation 

of the PM2.5 and PM10 nonattainment 

and maintenance areas. EPA has 

preliminarily determined that 

Alabama’s May 2, 2011, updates to 

Alabama’s general and transportation 

Conformity regulations are consistent 

with CAA and EPA’s regulations 

governing conformity. 

IV. Proposed Action 

EPA is proposing to approve portions 

of Alabama’s May 2, 2011, SIP revision 

adopting federal regulations amended in 

the May 16, 2008, NSR PM2.5 Rule; the 

October 20, 2010, PM2.5 PSD IncrementSILs-SMC rule; and updates to the 

State’s general and transportation 

conformity regulations into the Alabama 

SIP with the exception of the provisions 

listed in Section I. EPA has made the 

preliminary determination that this SIP 

revision, with regard to aforementioned 

proposed actions, is approvable because 

it is consistent with section 110 of the 

CAA and EPA regulations regarding 

NSR permitting and conformity. 

V. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this proposed 

action merely approves state law as 

meeting federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• 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); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the State, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen oxides, Particulate matter, 

Reporting and recordkeeping 

requirements. 

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

Dated: July 20, 2012. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

[FR Doc. 2012–19048 Filed 8–3–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2012–0444; FRL–9711–7] 

Approval and Promulgation of Air 

Quality Implementation Plans; Virginia; 

Fredericksburg 8-Hour Ozone 

Maintenance Area Revision to 

Approved Motor Vehicle Emissions 

Budgets 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

the Commonwealth of Virginia’s State 

Implementation Plan (SIP) submitted by 

the Virginia Department of 

Environmental Quality (VADEQ) on 

September 26, 2011. The SIP revision 

consists of updating the 2009 and 2015 

motor vehicle emission budgets 

(MVEBs) in the Fredericksburg 8-Hour 

Ozone Maintenance Area 

(Fredericksburg Area) by replacing the 

previously approved MVEBs with 

budgets developed using EPA’s Motor 

Vehicle Emissions Simulator emissions 

model (MOVES2010a). This action is 

being taken under the Clean Air Act 

(CAA). 

DATES: Written comments must be 

received on or before September 5, 

2012. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2012–0444 by one of the 

following methods: 

A. www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

B. Email: mastro.donna@epa.gov. 

C. Mail: EPA–R03–OAR–2012–0444, 

Donna Mastro, Acting Associate 

Director, Office of Air Program 

Planning, Mailcode 3AP30, U.S. 

Environmental Protection Agency, 

Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

D. Hand Delivery: At the previouslylisted EPA Region III address. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R03–OAR–2012– 

0444. EPA’s policy is that all comments 

received will be included in the public 

docket without change, and may be 

made available online at www.

regulations.gov, including any personal 

information provided, unless the 

comment includes information claimed 

to be Confidential Business Information 


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(CBI) or other information whose 

disclosure is restricted by statute. Do 

not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or email. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an email 

comment directly to EPA without going 

through www.regulations.gov, your 

email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. 

Docket: All documents in the 

electronic docket are listed in the www.

regulations.gov index. Although listed 

in the index, some information is not 

publicly available, i.e., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in www.regulations.gov or 

in hard copy during normal business 

hours at the Air Protection Division, 

U.S. Environmental Protection Agency, 

Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

Copies of the State submittal are 

available at the Virginia Department of 

Environmental Quality, 629 East Main 

Street, Richmond, Virginia 23219. 

FOR FURTHER INFORMATION CONTACT: 

Gregory Becoat, (215) 814–2036, or by 

email at becoat.gregory@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. This supplementary information 

section is arranged as follows: 

Table of Contents 

I. What action is EPA proposing to take? 

II. What is the background for this action? 

A. SIP Budgets and Transportation 

Conformity 

B. Prior Approval of Budgets 

C. The MOVES Emissions Model and 

Regional Transportation Conformity 

Grace Period 

D. Submission of New Budgets Based on 

MOVES2010a 

III. What are the Criteria for approval? 

IV. What is EPA’s analysis of the state’s 

Submittal? 

A. The Revised Inventories 

B. Approvability of the MOVES2010aBased Budgets 

C. Applicability of MOBILE6.2-Based 

Budgets 

V. What are the effects of EPA’s proposed 

action? 

VI. General Information Pertaining to SIP 

Submittals From the Commonwealth of 

Virginia 

VII. Statutory and Executive Order Reviews 

I. What action is EPA proposing to 

take? 

EPA is proposing to approve new 

MOVES2010a-based motor vehicle 

emission budgets (‘‘budgets’’) for the 

Fredericksburg Area. If EPA finalizes 

this proposed approval, the newly 

submitted MOVES2010a budgets will 

replace the existing, MOBILE6.2-based 

budgets in Virginia’s SIP and must then 

be used in future transportation 

conformity analyses for the area 

according to the transportation 

conformity rule (40 CFR 93.118). At that 

time, the previously approved budgets 

would no longer be applicable for 

transportation conformity purposes. 

If EPA approves the MOVES2010abased budgets, the regional 

transportation conformity grace period 

for using MOVES2010a for the 

pollutants included in these budgets 

will end for the Fredericksburg Area on 

the effective date of that final approval. 

See 75 FR 9411, March 2, 2010, for 

background and Section II.C for details. 

II. What is the background for this 

action? 

A. SIP Budgets and Transportation 

Conformity 

Under the CAA, states are required to 

submit, at various times, control strategy 

SIP revisions and maintenance plans for 

nonattainment and maintenance areas 

for a given national ambient air quality 

standard (NAAQS). These emission 

control strategy SIP revisions (e.g., 

reasonable further progress and 

attainment demonstration SIP revisions) 

and maintenance plans include budgets 

of on-road mobile source emissions for 

criteria pollutants and/or their 

precursors to address pollution from 

cars, trucks, and other on-road vehicles. 

SIP budgets are the portions of the total 

allowable emissions that are allocated to 

on-road vehicle use that, together with 

emissions from other sources in the 

area, will provide for attainment or 

maintenance. The budget serves as a 

ceiling on emissions from an area’s 

planned transportation system. For 

more information about budgets, see the 

preamble to the November 24, 1993, 

transportation conformity rule. 58 FR 

62188. 

Under section 176(c) of the CAA, 

transportation plans, transportation 

improvement programs (TIPs), and 

transportation projects must ‘‘conform’’ 

to (i.e., be consistent with) the SIP 

before they can be adopted or approved. 

Conformity to the SIP means that 

transportation activities will not cause 

new air quality violations, worsen 

existing air quality violations, or delay 

timely attainment of the NAAQS or an 

interim milestone. The transportation 

conformity regulations can be found at 

40 CFR Parts 51 and 93. 

Before budgets can be used in 

conformity determinations, EPA must 

affirmatively find the budgets adequate. 

However, adequate budgets do not 

supersede approved budgets for the 

same CAA purpose. If the submitted SIP 

budgets are meant to replace budgets for 

the same CAA purpose and year(s) 

addressed by a previously approved SIP, 

as is the case with Virginia’s 

MOVES2010a nitrogen oxides (NOX) 

motor vehicle emission budgets, EPA 

must approve the revised SIP and 

budgets and can affirm the budgets are 

adequate at the same time. Once EPA 

approves the SIP, the revised budgets 

must be used by state and Federal 

agencies in determining whether 

transportation activities conform to the 

SIP as required by section 176(c) of the 

CAA. EPA’s substantive criteria for 

determining the adequacy of budgets are 

set out in 40 CFR 93.118(e)(4). 

B. Prior Approval of Budgets 

EPA had previously approved the 

1997 ozone NAAQS Fredericksburg 

maintenance plan and redesignation 

request into the Virginia SIP on 

December 23, 2005 (70 FR 76165). EPA 

also approved the MVEBs for NOX and 

volatile organic compounds (VOC) 

during the rulemaking notice. The SIP’s 

budgets were based on EPA’s 

MOBILE6.2 emissions model. The 

approval identified NOX and VOC 

MVEBs for transportation conformity 

purposes for the years 2004, 2009 and 

2015. VADEQ chose 2009 as an interim 

year in the 10-year maintenance 

demonstration period to demonstrate 

that the VOC and NOX emissions were 

not projected to increase above the 2004 

attainment level during the time of the 

10-year maintenance period. The 2004, 

2009 and 2015 MVEBs for the 

Fredericksburg area were approvable 

because the MVEBs for NOX and VOC 


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1Upon the release of MOVES2010, EPA 

established a two-year grace period before MOVES 

is required to be used for regional conformity 

analyses (75 FR 9411). EPA subsequently 

promulgated a final rule on February 27, 2012 to 

provide an additional year before MOVES is 

required for these analyses (77 FR 11394). 

including the allocated safety margins 

continued to maintain the total 

emissions at or below the attainment 

year inventory levels as required by the 

transportation conformity regulations. 

C. The MOVES Emissions Model and 

Regional Transportation Conformity 

Grace Period 

The MOVES model is EPA’s state-ofthe-art tool for estimating highway 

emissions. The model is based on 

analyses of millions of emission test 

results and considerable advances in 

EPA’s understanding of vehicle 

emissions. MOVES incorporates the 

latest emissions data, more 

sophisticated calculation algorithms, 

increased user flexibility, new software 

design, and significant new capabilities 

relative to those reflected in 

MOBILE6.2. 

EPA announced the release of 

MOVES2010 in March 2010 (75 FR 

9411). EPA subsequently released two 

minor model revisions: MOVES2010a in 

September 2010 and MOVES2010b in 

April 2012. Both of these minor 

revisions enhance model performance 

and do not significantly affect the 

criteria pollutant emissions results from 

MOVES2010. 

MOVES will be required for new 

regional emissions analyses for 

transportation conformity 

determinations (‘‘regional conformity 

analyses’’) outside of California that 

begin after March 2, 2013 (or when EPA 

approves MOVES-based budgets, 

whichever comes first).1 The MOVES 

grace period for regional conformity 

analyses applies to both the use of 

MOVES2010 and approved minor 

revisions (e.g., MOVES2010a and 

MOVES2010b). For more information, 

see EPA’s ‘‘Policy Guidance on the Use 

of MOVES2010 and Subsequent Minor 

Model Revisions for State 

Implementation Plan Development, 

Transportation Conformity, and Other 

Purposes’’ (April 2012), available online 

at: www.epa.gov/otaq/stateresources/

transconf/policy.htm#models (hereafter 

MOVES2010 Policy Guidance). 

EPA encouraged areas to examine 

how MOVES would affect future 

transportation plan and TIP conformity 

determinations so, if necessary, SIPs 

and budgets could be revised with 

MOVES or transportation plans and 

TIPs could be revised (as appropriate) 

prior to the end of the regional 

transportation conformity grace period. 

EPA also encouraged state and local air 

agencies to consider how the release of 

MOVES would affect analyses 

supporting SIP submissions under 

development (77 FR 9411 and 77 FR 

11394). 

D. Submission of New Budgets Based on 

MOVES2010a 

On September 26, 2011, VADEQ 

submitted a new SIP with budgets based 

on MOVES2010a for the years 2009 and 

2015 to help ensure that the 

Fredericksburg area can demonstrate 

transportation conformity using 

MOVES2010a once the grace period 

expires. Table 1 compares the NOX

MVEBs developed using MOBILE6.2 to 

the inventories developed using 

MOVES2010a. 

TABLE 1—FREDERICKSBURG MAINTENANCE AREA MOBILE SOURCE EMISSIONS COMPARISON TONS NOX/DAY

Year MOBILE6.2 

MVEB * MOVES2010a 

2004 ............. 19.742 24.064 

2009 ............. 13.062 17.615 

2015 ............. 7.576 9.933 

* Includes conformity buffers 

III. What are the criteria for approval? 

EPA has always required under the 

CAA that revisions to existing SIPs 

continue to meet applicable 

requirements (i.e., reasonable further 

progress, attainment, or maintenance). 

States that revise their existing SIPs to 

include MOVES budgets must therefore 

show that the SIP continues to meet 

applicable requirements with the new 

level of motor vehicle emissions 

contained in the budgets. The SIP must 

also meet any applicable SIP 

requirements under CAA section 110. 

In addition, the transportation 

conformity rule (40 CFR 

93.118(e)(4)(iv)) requires that ‘‘the motor 

vehicle emissions budget(s), when 

considered together with all other 

emissions sources, is consistent with 

applicable requirements for reasonable 

further progress, attainment, or 

maintenance (whichever is relevant to 

the given implementation plan 

submission).’’ This and the other 

adequacy criteria found at 40 CFR 

93.118(e)(4) must be satisfied before 

EPA can find submitted budgets 

adequate or approve them for 

conformity purposes. 

In addition, EPA has stated that areas 

can revise their budgets and inventories 

using MOVES without revising their 

entire SIP if: (1) The SIP continues to 

meet applicable requirements when the 

previous motor vehicle emissions 

inventories are replaced with MOVES 

base year and milestone, attainment, or 

maintenance year inventories, and (2) 

the state can document that growth and 

control strategy assumptions for nonmotor vehicle sources continue to be 

valid and any minor updates do not 

change the overall conclusions of the 

SIP. For example, the first criterion 

could be satisfied by demonstrating that 

the emissions reductions between the 

base year and attainment or 

maintenance year are the same or 

greater using MOVES than they were 

previously. For more information, see 

EPA’s MOVES2010 Policy Guidance. 

IV. What is EPA’s analysis of the state’s 

submittal? 

A. The Revised Inventories 

Virginia included the updated 2004, 

2009, and 2015 NOX MVEBs calculated 

using the latest planning assumptions 

for the Fredericksburg area and 

MOVES2010a in Table 2 below. Since 

existing VOC MVEBs using MOBILE6.2 

allow a seamless transportation 

conformity process when using 

MOVES2010a, the existing VOC MVEBS 

were not revised in this SIP revision. 

More detailed information on the 

assumptions used in the MOVES2010a 

modeling, including growth 

assumptions, can be found in the docket 

prepared for this rulemaking action. 

TABLE 2—NOX MOTOR VEHICLE EMISSIONS BUDGETS CALCULATED WITH

MOVES2010A

Year 

NOX

Emissions 

tons/day 

2004 Attainment year ........... 24.064 

2009 Predicted Emissions .... 17.615 

Conformity Buffers ................ 2.000 

2009 Interim Budget Year .... 19.615 

2015 Predicted Emissions .... 9.933 

Conformity Buffers ................ 3.000 

2015 Final Budget ................ 12.933 

In its September 26, 2011 SIP revision 

submission, Virginia demonstrated how 

future emissions of NOX would not 

exceed the level of the attainment 

inventory for a 10-year period following 

redesignation in Table 3 below. The 

projected emissions for the point and 

area source categories reflect the 

expected ozone season daily emissions 

based on the best available growth rates 

and projections used in the 1997 ozone 

NAAQS Fredericksburg maintenance 

plan. The nonroad category reflects 

emissions estimated using 

NONROAD2008a. More detailed 

information on the analyses showing 


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2For more information, see EPA’s MOVES2010 

Policy Guidance (April 2012). 

that the projected emissions from the 

point and area source categories do not 

need to be updated and continue to 

demonstrate that air quality will remain 

compliant with the 1997 ozone NAAQS 

through 2015 and beyond can be found 

in the docket prepared for this 

rulemaking action. 

TABLE 3—FREDERICKSBURG AREA NOX EMISSIONS FROM 2004 TO 2015 

NOX in tons/day 

Year Point Area 1 Nonroad Mobile 2 Total 

Year 2004 ............................................................................ 0.179 3.465 4.950 24.064 32.658 

Year 2009 ............................................................................ 0.180 3.926 4.286 19.615 28.007 

D 2004–2009 ........................................................................ 0.001 0.461 ¥0.664 ¥4.449 ¥4.651 

Year 2015 ............................................................................ 0.182 4.742 2.953 12.933 20.810 

D 2004–2015 ........................................................................ 0.003 1.277 ¥1.997 ¥11.131 ¥11.848 

1 Includes selected local controls (open burning). 

2 Includes conformity buffers identified in Table 2. 

B. Approvability of the MOVES2010aBased Budgets 

EPA is proposing to approve the 

MOVES2010a-based budgets submitted 

by Virginia for use in determining 

transportation conformity in the 

Fredericksburg area. EPA is making this 

proposal based on our evaluation of 

these budgets using the adequacy 

criteria found in 40 CFR 93.118(e)(4) 

and our in-depth evaluation of 

Virginia’s submittal and compliance 

with SIP requirements. EPA has 

determined, based on its evaluation, 

that the area’s SIP would continue to 

serve its intended purpose with the 

submitted MOVES2010a-based budgets 

and that the budgets themselves meet 

the adequacy criteria in the conformity 

rule at 40 CFR 93.118(e)(4). Specifically: 

• The submitted SIP was endorsed 

and subject to a state public hearing 

((e)(4)(i)); 

• Before the submitted SIP was 

submitted to EPA, consultation among 

Federal, state, and local agencies 

occurred, and full documentation was 

provided to EPA ((e)(4)(ii)); 

• The budgets are clearly identified 

and precisely quantified ((e)(4)(iii)); 

• The budgets, when considered 

together with all other emissions 

sources, are consistent with applicable 

requirements for reasonable further 

progress, attainment, or maintenance 

((e)(4)(iv)); 

• The budgets are consistent with and 

clearly related to the emissions 

inventory and control measures in the 

submitted SIP ((e)(4)(v)); and 

• The revisions explain and 

document changes to the previous 

budgets, impacts on point and area 

source emissions, changes to established 

safety margins, and reasons for the 

changes (including the basis for any 

changes related to emission factors or 

vehicle miles traveled) ((e)(4)(vi)). 

The SIP revision satisfies all of the 

above criteria for adequacy. The 

updated NOX MVEBs presented in Table 

2 show that air quality in the 

Fredericksburg area will continue to 

maintain compliance with the 1997 

ozone NAAQS. Similar to the 

previously approved budgets, the 2009 

and 2015 MVEBs for the Fredericksburg 

area are approvable because the MVEBs 

for NOX including the allocated safety 

margins continue to maintain the total 

emissions at or below the attainment 

year inventory levels as required by the 

transportation conformity regulations. 

The updated NOX MVEBs using 

MOVES2010a will not negatively affect 

the Fredericksburg area’s ability to 

comply with the 1997 ozone standard. 

EPA has always required under the 

CAA that revisions to existing SIPs and 

budgets continue to meet applicable 

requirements (e.g., reasonable further 

progress or attainment). Therefore, 

states that revise existing SIPs with 

MOVES must show that the SIP 

continues to meet applicable 

requirements with the new level of 

motor vehicle emissions calculated by 

the new model. 

To that end, Virginia’s submitted SIP 

meets EPA’s two criteria for revising 

budgets without revising the entire SIP 

because: (1) The SIP continues to meet 

applicable requirements when the 

previous motor vehicle emissions 

inventories are replaced with 

MOVES2010a base year and milestone, 

attainment, or maintenance year 

inventories, and (2) Virginia can 

document that growth and control 

strategy assumptions for non-motor 

vehicle sources continue to be valid and 

any minor updates do not change the 

overall conclusions of the SIP. 

The VADEQ September 26, 2011 SIP 

revision submission updates the 2009 

and 2015 MVEBs using the 

MOVES2010a model. EPA has 

articulated its policy regarding the use 

of MOVES2010a in SIP development in 

its MOVES2010 Policy Guidance. EPA’s 

review of VADEQ’s submittal indicates 

that Virginia has appropriately applied 

this policy and meets the two criteria for 

revising budgets without revising the 

entire SIP. EPA policy guidance also 

requires that Virginia consider whether 

growth and control strategy assumptions 

for non-motor vehicle sources (i.e., 

point, area, and non-road mobile 

sources) are still accurate at the time the 

proposed revision is developed. Virginia 

reassessed the growth and control 

strategy assumptions for non-motor 

vehicle sources and concluded that 

these assumptions will continue to 

remain compliant with the 1997 ozone 

NAAQS through 2015 and beyond for 

the Fredericksburg area. Based on our 

review of the SIP and the new budgets 

provided, EPA is proposing that the SIP 

will continue to meet its requirements if 

the revised motor vehicle emissions 

inventories are replaced with 

MOVES2010a inventories. 

C. Applicability of MOBILE6.2-Based 

Budgets 

Pursuant to Virginia’s request, EPA is 

proposing that, if we finalize the 

approval of the revised budgets, the 

state’s existing MOBILE6.2 budgets will 

no longer be applicable for 

transportation conformity purposes 

upon the effective date of that final 

approval. In addition, once EPA 

approves the MOVES2010a-based 

budgets, the regional transportation 

conformity grace period for using 

MOVES2010 (and subsequent minor 

revisions) for the pollutants included in 

these budgets will end for the 

Fredericksburg area on the effective date 

of that final approval.2

V. What are the effects of EPA’s 

proposed action? 

EPA is proposing in this action that 

the Fredericksburg’s area existing 

approved budgets for NOX be replaced 

with new budgets based on the 


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46676 Federal Register / Vol. 77, No. 151 / Monday, August 6, 2012 / Proposed Rules 

MOVES2010a emissions model. If this 

proposal is finalized, future 

transportation conformity 

determinations would use the new, 

MOVES2010a-based budgets and would 

no longer use the existing MOBILE6.2- 

based budgets for applicable years. EPA 

is also proposing that the 

Fredericksburg area would continue to 

meet its requirements under the CAA 

when these new budgets are included. 

VI. General Information Pertaining to 

SIP Submittals From the 

Commonwealth of Virginia 

In 1995, Virginia adopted legislation 

that provides, subject to certain 

conditions, for an environmental 

assessment (audit) ‘‘privilege’’ for 

voluntary compliance evaluations 

performed by a regulated entity. The 

legislation further addresses the relative 

burden of proof for parties either 

asserting the privilege or seeking 

disclosure of documents for which the 

privilege is claimed. Virginia’s 

legislation also provides, subject to 

certain conditions, for a penalty waiver 

for violations of environmental laws 

when a regulated entity discovers such 

violations pursuant to a voluntary 

compliance evaluation and voluntarily 

discloses such violations to the 

Commonwealth and takes prompt and 

appropriate measures to remedy the 

violations. Virginia’s Voluntary 

Environmental Assessment Privilege 

Law, Va. Code Sec. 10.1–1198, provides 

a privilege that protects from disclosure 

documents and information about the 

content of those documents that are the 

product of a voluntary environmental 

assessment. The Privilege Law does not 

extend to documents or information (1) 

that are generated or developed before 

the commencement of a voluntary 

environmental assessment; (2) that are 

prepared independently of the 

assessment process; (3) that demonstrate 

a clear, imminent and substantial 

danger to the public health or 

environment; or (4) that are required by 

law. 

On January 12, 1998, the 

Commonwealth of Virginia Office of the 

Attorney General provided a legal 

opinion that states that the Privilege 

law, Va. Code Sec. 10.1–1198, precludes 

granting a privilege to documents and 

information ‘‘required by law,’’ 

including documents and information 

‘‘required by Federal law to maintain 

program delegation, authorization or 

approval,’’ since Virginia must ‘‘enforce 

Federally authorized environmental 

programs in a manner that is no less 

stringent than their Federal counterparts 

* * *.’’ The opinion concludes that 

‘‘[r]egarding § 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 Virginia 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. 

VII. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely proposes to approve state law as 

meeting Federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• 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); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this proposed rule, 

pertaining to Virginia’s update of the 

Fredericksburg area motor vehicle 

emission budgets based on 

MOVES2010a, does not have tribal 

implications as specified by Executive 

Order 13175 (65 FR 67249, November 9, 

2000), because the SIP is not approved 

to apply in Indian country located in the 

state, and EPA notes that it will not 

impose substantial direct costs on tribal 

governments or preempt tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Nitrogen oxides, Ozone, 

Particulate matter, Volatile organic 

compounds. 

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

Dated: July 26, 2012. 

W.C. Early, 

Acting Regional Administrator, Region III. 

[FR Doc. 2012–19171 Filed 8–3–12; 8:45 am] 

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