[Federal Register Volume 69, Number 164 (Wednesday, August 25, 2004)]
[Rules and Regulations]
[Pages 52174-52176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-19432]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[VA159-5083a; FRL-7805-7]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Revision of Flow Control Date in Nitrogen Oxides Budget 
Trading Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to convert a conditional 
approval in the Virginia State Implementation Plan (SIP) to a full 
approval. As required by the conditional approval, Virginia has 
submitted a SIP revision that pertains to the allowance banking 
provisions in Virginia's Nitrogen Oxides (NOX) Budget 
Trading Program. The SIP revision changes the start date of flow 
control from 2006 to 2005. Flow control is a limitation on banked 
allowances that are used for compliance purposes, and is required to 
start in the second year of the trading program. It is triggered when 
the regionwide total of banked allowances exceeds a specified 
threshold. The year 2005 will be the second year of Virginia's 
NOX Budget Trading program. EPA is approving this revision 
to Virginia's SIP in accordance with the requirements of the Clean Air 
Act.

DATES: This rule is effective on October 25, 2004 without further 
notice, unless EPA receives adverse written comment by September 24, 
2004. 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 VA159-5083 by one of the 
following methods:
    A. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    B. E-mail: [email protected]
    C. Mail: Makeba Morris, Chief, Air Quality Planning Branch, 
Mailcode 3AP21, 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.VA159-5083. 
EPA's policy is that all comments received will be included in the 
public docket without change, 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 regulations.gov or e-
mail. The Federal regulations.gov website 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 e-mail comment directly to EPA without going through 
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.
    Copies of the documents relevant to this action are available 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; 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

    On July 8, 2003 (68 FR 40520), EPA published a final rulemaking 
notice (FRN) for the Commonwealth of Virginia. The FRN approved 
Virginia's NOX Budget Trading Program, with the exception of 
its NOX allowance banking provisions, which EPA 
conditionally approved. EPA's rationale for approving Virginia's 
NOX Budget Trading Program while conditionally approving the 
program's allowance banking provisions were provided in the November 
12, 2002 (67 FR 68542) notice of proposed rulemaking (NPR), and 
discussed in detail in EPA's response to public comments in the FRN and 
will not be restated here. The terms of the conditional approval 
required that Virginia revise its banking provisions by changing the 
flow control start date from 2006 to 2005, and submit the change as a 
SIP revision within one year from August 7, 2003, the effective date of 
the conditional approval.

II. Summary of SIP Revision

    On June 23, 2004, the Virginia Department of Environmental Quality 
(VADEQ) submitted a formal revision to its SIP. The SIP revision 
pertained to Virginia's banking provision at 9 VAC 5-140-550, and 
changed the flow control start date from 2006 to 2005. Virginia's 
NOX Budget Trading Program was implemented in 2004, 
therefore flow control will start in the second year of the program, 
which is consistent with the other states subject to the NOX 
SIP Call. Virginia has therefore satisfied the terms of the conditional 
approval.
    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

[[Page 52175]]

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.

III. Final Action

    EPA is converting its conditional approval of the Commonwealth of 
Virginia SIP pertaining to its allowance banking provisions at 9 VAC 5-
140-550 to a full approval. The SIP revision submitted submitted by the 
State changes the flow control start date from 2006 to 2005. Virginia 
has therefore corrected the deficiency identified by EPA in its 
NOX Budget Trading Program, and has satisfied all the terms 
of the conditional approval.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comment. However, in the ``Proposed Rules'' section of today's 
Federal Register, EPA is publishing a separate document that will serve 
as the proposal to convert the conditional approval to a full approval 
if adverse comments are filed. This rule will be effective on October 
25, 2004 without further notice unless EPA receives adverse comment by 
September 24, 2004. 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 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.

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 
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.).

[[Page 52176]]

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 October 25, 2004. 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 allowance banking provisions 
in Virginia's NOX Budget 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, Nitrogen dioxide, 
Ozone.

    Dated: August 18, 2004.
Richard J. Kampf,
Acting Regional Administrator

0
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 entry for 9 VAC 5, Chapter 140, section 5-140-550 to read as 
follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (c) EPA approved regulations.

                                                      EPA-APPROVED REGULATIONS IN THE VIRGINIA SIP
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                                                                                                                               Explanation [former SIP
    State citation (9 VAC 5)              Title/subject             State effective date            EPA approval date                 citation]
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                                                                      * * * * * * *
Chapter 140.....................  NOX Budget Trading Program [Part I]
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                                                                Part I Emission Standards
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                                                                      * * * * * * *
Article 6.......................  NOX Allowance Tracking System
 
                                                                      * * * * * * *
5-140-550.......................  Banking.....................  March 24,...................  August 25, 2004.............
 
                                                                      * * * * * * *
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Sec.  52.2450  [Amended]

0
3. In Sec.  52.2450, paragraph (c) is removed and reserved.

[FR Doc. 04-19432 Filed 8-24-04; 8:45 am]
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