[Federal Register Volume 75, Number 48 (Friday, March 12, 2010)]
[Rules and Regulations]
[Pages 11738-11740]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5105]
[[Page 11738]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2009-0599; FRL-9125-2]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Revision to Clean Air Interstate Rule Sulfur Dioxide Trading
Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision
submitted by the Commonwealth of Virginia. The revision pertains to the
timing for the first phase of the sulfur dioxide (SO2)
trading budget under the Commonwealth's approved regulations that
implement the requirements of the Clean Air Interstate Rule (CAIR). EPA
is approving this revision to change the start date of Virginia's CAIR
SO2 trading budget from the control period in 2009 to the
control period in 2010 in accordance with the requirements of the Clean
Air Act (CAA).
DATES: Effective Date: This final rule is effective on April 12, 2010.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR--2009-0599. All documents in the docket are listed
in the http://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 http://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: Marilyn Powers, (215) 814-2308, or by
e-mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
Throughout this document, whenever ``we,'' ``us,'' or ``our'' is
used, we mean EPA.
On January 14, 2009, the Commonwealth of Virginia submitted a
formal revision to its SIP. The SIP revision consists of a change in
timing for the first phase of the Commonwealth's approved CAIR
SO2 trading budget. The start for the first phase of the
SO2 trading budget is changed from the control period in
2009 to the control period in 2010.
On October 22, 2009 (74 FR 54485), EPA published a Direct Final
Rule (DFRN) to approve the January 14, 2009 SIP revision submitted by
the Commonwealth of Virginia. On October 26, 2009, EPA received a
comment, and on November 23, 2009 (74 FR 61037), EPA withdrew the DFRN
and noted that the comment would be addressed in a final action based
on the Notice of Proposed Rulemaking (NPR) published on October 22,
2009 (74 FR 54534). The comment period closed on November 23, 2009. No
additional comments were received.
Comment: An anonymous commenter submitted the comment: ``I am not
sure about this rule.''
Response: The comment, while vaguely expressing a general
uncertainty about the rule, does not identify any particular defect in
the rule substance or adoption. Importantly, the comment does not
oppose EPA's proposed full approval of the rule. EPA therefore believes
that no additional response is necessary.
II. Summary of SIP Revision
Virginia regulation 9 VAC 5-140-3400 originally required that the
Commonwealth's CAIR SO2 budget applied starting with the
control period in 2009. However, the EPA-administered CAIR
SO2 trading programs under States' CAIR SIPs and under the
CAIR FIP start on January 1, 2010, and the associated CAIR
SO2 trading budgets apply starting with the 2010 control
period. To make the Virginia CAIR SO2 trading program
requirements consistent with the regional trading program requirements,
Virginia revised regulation 9 VAC-5-140-3400 to change this date from
2009 to 2010. In the SIP revision, Virginia explains that this change
corrects a technical error in its approved CAIR SIP. The SIP revision
also includes a clarifying revision to the description of the State's
SO2 budget.
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)
``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 Section 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
[[Page 11739]]
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.
IV. Final Action
EPA is approving the SIP revision submitted by the Commonwealth of
Virginia on January 14, 2009. The SIP revision incorporates a timing
change to the Commonwealth's CAIR SO2 trading program that
make it consistent with the regional CAIR SO2 trading
program, under which SO2 trading budgets apply starting in
2010, as well as a clarifying revision to the description of the
State's SO2 budget.
V. Statutory and Executive Order Reviews
A. General Requirements
Under the Clean Air Act, 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 Clean Air Act.
Accordingly, this 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 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 Clean Air Act; 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.
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 action 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. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action 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 May 11, 2010. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action 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 to approve a revision to Virginia's CAIR SO2
Trading Program 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, Incorporation by
reference, Sulfur oxides.
Dated: February 18, 2010.
W.C. Early,
Acting Regional Administrator, EPA Region III.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for 40 CFR 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 adding a
heading to the table, revising the heading for 9 VAC 5, Chapter 140,
and the entry 5-140-3400 to read as follows:
Sec. 52.2420 Identification of plan.
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(c) * * *
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EPA-Approved Virginia Regulations and Statutes
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State Explanation [former
State citation Title/subject effective date EPA approval date SIP citation]
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29 VAC 5, Chapter 140 Regulations for Emissions Trading Programs
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Part IV SO2 Annual Trading Program
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5-140-3400....................... State trading 12/12/07 03/12/10 [Insert 1. In section
budgets. page number where title, replace
the document ``State'' with
begins]. ``CAIR SO2
Annual''.
.............. 2. In paragraph 1,
replace 2009 with
2010.
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[FR Doc. 2010-5105 Filed 3-11-10; 8:45 am]
BILLING CODE 6560-50-P