[Federal Register Volume 72, Number 201 (Thursday, October 18, 2007)]
[Rules and Regulations]
[Pages 59017-59019]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-20597]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[EPA-R03-OAR-2005-VA-0012; FRL-8484-4]
Approval and Promulgation of State Air Quality Plans for
Designated Facilities and Pollutants; Commonwealth of Virginia; Control
of Total Reduced Sulfur From Pulp and Paper Mills
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving a Section 111(d) Plan revision submitted by
the Commonwealth of Virginia. The revision consists of amendments to
the regulation that controls total reduced sulfur (TRS) from pulp and
paper mills. This action is being taken under the Clean Air Act (CAA).
DATES: Effective Date: This final rule is effective on November 19,
2007.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2005-VA-0012. All documents in the docket are listed
in the www.regulations.gov Web site. Although listed in the electronic
docket, some information is not publicly available, i.e., confidential
business information (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 through www.regulations.gov or in hard
copy for public inspection during normal business hours at the Air
Protection Division, U.S. Environmental Protection Agency, Region III,
1650 Arch Street, Philadelphia, Pennsylvania 19103. 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: LaKeshia Robertson, (215) 814-2113, or
by e-mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On July 3, 2007 (72 FR 36413), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed
approval of amendments to Virginia's Section 111(d) Plan to control TRS
from pulp and paper mills (9 VAC 5, Chapter 40, Article 13, Rule 4-13).
The formal SIP revision was submitted by the Commonwealth of Virginia
on June 20, 2005. Other specific requirements of Virginia's plan to
control TRS from pulp and paper mills and the rational for EPA's
proposed action are explained in the NPR and will not be restated here.
No public comments were received on the NPR.
II. 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
[[Page 59018]]
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 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 Clean Air Act is likewise
unaffected by this, or any, state audit privilege or immunity law.
III. Final Action
EPA is approving the amendments to an existing regulation (9 VAC 5,
Chapter 40, Article 13, Rule 4-13) as a revision to the Virginia
Section 111(d) Plan submitted on June 20, 2005.
IV. 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 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 (Pub. L. 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
requirement, and does not alter the relationship or the distribution of
power and responsibilities established in the CAA. 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 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. 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 CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by December 17, 2007. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action, approving the amendments to Virginia's Section 111(d)
Plan, may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 62
Environmental protection, Administrative practice and procedure,
Air pollution control, Aluminum, Fertilizers, Fluoride,
Intergovernmental relations, Paper and paper products industry,
Phosphate, Reporting and recordkeeping requirements, Sulfur oxides,
Sulfur acid plants, Waste treatment and disposal.
Dated: October 10, 2007.
William T. Wisniewski,
Acting Regional Administrator, Region III.
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40 CFR part 62 is amended as follows:
[[Page 59019]]
PART 62--[AMENDED]
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1. The authority citation for part 62 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart VV--Virginia
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2. Section 62.11610 is amended by adding paragraph (d) to read as
follows:
Sec. 62.11610 Identification of plan.
* * * * *
(d) On June 20, 2005, the Commonwealth of Virginia submitted
changes to its 111(d) Plan. The changes consist of amendments to 9 VAC
5, Chapter 40, Part II, Article 13, Sections 5-40-1660, 5-40-1670
(definitions of Agreement (removed), Cross recovery furnace (revised),
Neutral sulfite semichemical pulping operation (added), New design
recovery furnace (added), Pulp and paper mill (added), Semichemical
pulping process (added), Straight kraft recovery furnace (revised),
Total reduced sulfur (revised)), 5-40-1690, 5-40-1750, 5-40-1770B. and
C., 5-40-1780D., and 5-40-1810. The State effective date is April 1,
1999.
[FR Doc. E7-20597 Filed 10-17-07; 8:45 am]
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