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[Federal Register Volume 77, Number 147 (Tuesday, July 31, 2012)]
[Proposed Rules]
[Pages 45304-45307]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-18657]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2010-0151; FRL-9706-1]

Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; The 2002 Base Year Inventory

AGENCY: Environmental Protection Agency (EPA).

[[Page 45305]]

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve the fine particulate matter 
(PM2.5) 2002 base year emissions inventory portion of the 
Virginia State Implementation Plan (SIP) revision submitted by the 
Commonwealth of Virginia, through the Virginia Department of 
Environmental Quality (VDEQ), on April 4, 2008. The emissions inventory 
is part of the Virginia April 4, 2008 SIP revision that was submitted 
to meet nonattainment requirements related to Virginia's portion of the 
Washington DC-MD-VA nonattainment area (hereafter referred to as 
Virginia Area or Area) for the 1997 PM2.5 National Ambient 
Air Quality Standard (NAAQS) SIP. EPA is proposing to approve the 2002 
base year PM2.5 emissions inventory in accordance with the 
requirements of the Clean Air Act (CAA).

DATES: Written comments must be received on or before August 30, 2012.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2010-0151 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-2010-0151, 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 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-
2010-0151. 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 (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: Asrah Khadr, (215) 814-2071, or by 
email at khadr.asrah@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background
II. Summary of SIP Revision
III. General Information Pertaining to SIP Submittals From the 
Commonwealth of Virginia
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. Background

    Throughout this document, whenever ``we,'' ``us,'' or ``our'' is 
used, we mean EPA. On July 18, 1997 (62 FR 38652), EPA established the 
1997 PM2..5 NAAQS, including an annual standard of 15.0 
[mu]g/m\3\ based on a 3-year average of annual mean PM2.5 
concentrations, and a 24-hour (or daily) standard of 65 [mu]g/m\3\ 
based on a 3-year average of the 98th percentile of 24-hour 
concentrations. EPA established the standards based on significant 
evidence and numerous health studies demonstrating that serious health 
effects are associated with exposures to PM2.5.
    Following promulgation of a new or revised NAAQS, EPA is required 
by the CAA to designate areas throughout the United States as attaining 
or not attaining the NAAQS; this designation process is described in 
section 107(d)(1) of the CAA. In 1999, EPA and state air-quality 
agencies initiated the monitoring process for the 1997 PM2.5 
NAAQS and, by January 2001, established a complete set of air-quality 
monitors. On January 5, 2005, EPA promulgated initial air-quality 
designations for the 1997 PM2.5 NAAQS (70 FR 944), which 
became effective on April 5, 2005, based on air-quality monitoring data 
for calendar years 2001-03.
    On April 14, 2005, EPA promulgated a supplemental rule amending the 
agency's initial designations (70 FR 19844), with the same effective 
date (April 5, 2005) as that which was promulgated at 70 FR 944. As a 
result of this supplemental rule, PM2.5 nonattainment 
designations are in effect for 39 areas, comprising 208 counties within 
20 states (and the District of Columbia) nationwide, with a combined 
population of approximately 88 million. The Virginia Area which is the 
subject of this rulemaking was included in the list of areas not 
attaining the 1997 PM2.5 NAAQS. The Virginia Area consists 
of the following cities and counties in Virginia: Arlington County, 
Alexandria City, Fairfax County, Loudoun County and Prince William 
County.
    On January 12, 2009 (74 FR 1146), EPA determined that Virginia had 
attained the 1997 PM2.5 NAAQS in the Virginia Area. That 
determination was based upon quality assured, quality controlled and 
certified ambient air monitoring data that showed the Area had 
monitored attainment of the 1997 PM2.5 NAAQS for the 2004-
2006 monitoring period and that continued to show attainment of the 
1997 PM2.5 NAAQS based on the 2005-2007 data. The January 
12, 2009 determination suspended the requirements for Virginia to 
submit an attainment demonstration, associated reasonably available 
control measures, a reasonable further progress plan, contingency 
measures, and other planning SIP revisions related to attainment of the 
standard for so long as the nonattainment area continues to meet the 
1997 PM2.5 NAAQS. On January 23, 2012, VDEQ submitted a 
request for withdrawal of the Virginia 1997 PM2.5 SIP 
revisions including the withdrawal of the attainment plan, analysis of 
reasonably available control measures, attainment demonstration, 
contingency plans and mobile source budgets. To meet the requirements 
of CAA section 172(c)(3), Virginia did not request the withdrawal of 
the 2002 base

[[Page 45306]]

year emission inventory portion of the 1997 PM2.5 SIP 
revisions. Section 172(c)(3) of the CAA requires submission and 
approval of a comprehensive, accurate, and current inventory of actual 
emissions.

II. Summary of SIP Revision

    The 2002 base year emission inventory submitted by VDEQ on April 4, 
2008 includes emissions estimates that cover the general source 
categories of point sources, non-road mobile sources, area sources, on-
road mobile sources, and biogenic sources. The pollutants that comprise 
the inventory are nitrogen oxides (NOX), volatile organic 
compounds (VOCs), PM2.5, coarse particles (PM10), 
ammonia (NH3), and sulfur dioxide (SO2). EPA has 
reviewed the results, procedures and methodologies for the base year 
emissions inventory submitted by VDEQ. The year 2002 was selected by 
VDEQ as the base year for the emissions inventory per 40 CFR 
51.1008(b). A discussion of the emissions inventory development as well 
as the emissions inventory can be found in Appendix B of the April 3, 
2008 SIP submittal.
    Table 1 provides a summary of the annual 2002 emissions of 
NOX, VOCs, PM2.5, PM10, 
NH3, and SO2 which were included in the Virginia 
submittal.

                                                    Table 1--Emissions of Pollutants in Tons per Year
                                                                          [TPY]
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                     Pollutant                            NOX              VOCs            PM2.5             PM10             NH3              SO2
--------------------------------------------------------------------------------------------------------------------------------------------------------
Emissions (TPY)...................................       75,909.63        92,724.76         8,277.43        29,997.85         2,370.78        49,974.50
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    The CAA section 172(c)(3) emissions inventory is developed by the 
incorporation of data from multiple sources. States were required to 
develop and submit to EPA a triennial emissions inventory according to 
the Consolidated Emissions Reporting Rule (CERR) for all source 
categories (i.e., point, area, nonroad mobile and on-road mobile). The 
2002 emissions inventory was based on data developed by VDEQ and the 
Metropolitan Washington Council of Government (MWCOG). The data were 
developed according to current EPA emissions inventory guidance 
``Emissions Inventory Guidance for Implementation of Ozone and 
Particulate Matter NAAQS and Regional Haze Regulations,'' August 2005. 
EPA preliminarily agrees that the process used to develop this 
emissions inventory is adequate to meet the requirements of CAA section 
172(c)(3), the implementing regulations, and EPA guidance for emission 
inventories. More information regarding the review of the base year 
inventory can be found in the technical support document (TSD) titled 
``2002 SIP Base Year Inventory'' that is located in this docket.

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 
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 is proposing to approve the 2002 base year emissions inventory 
portion of the SIP revision submitted by the

[[Page 45307]]

Commonwealth of Virginia through VDEQ on April 4, 2008. We have made 
the determination that this action is consistent with section 110 of 
the CAA. 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 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 the PM2.5 
2002 base year emissions inventory portion of the Virginia SIP, 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, Nitrogen dioxide, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
oxides, Volatile organic compounds.

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

    Dated: July 18, 2012.
W.C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2012-18657 Filed 7-30-12; 8:45 am]
BILLING CODE 6560-50-P
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