[Federal Register Volume 73, Number 211 (Thursday, October 30, 2008)]
[Rules and Regulations]
[Pages 64551-64553]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25668]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

 [EPA-R03-OAR-2007-0382, EPA-R03-OAR-2008-0113; FRL-8735-6]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Emission Reductions From Large Stationary Internal Combustion 
Engines and Large Cement Kilns

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is approving State Implementation Plan (SIP) revisions 
submitted by the Virginia Department of Environmental Quality (VADEQ). 
These revisions require nitrogen oxides (NOX) emission 
reductions from four large stationary internal combustion (IC) engines 
and a large cement kiln located in the Commonwealth of Virginia. The 
intended effect of this action is to approve permitted emission limits 
that enable Virginia to meet its remaining NOX reduction 
obligations under the NOX SIP Call.

DATES: Effective Date: This final rule is effective on December 1, 
2008.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2007-0382. 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

    On August 21, 2008 (73 FR 49373), EPA published a notice of 
proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR 
proposed approval of NOX emission reductions from four large 
stationary IC engines and a large cement kiln located in the 
Commonwealth. The formal SIP revisions were submitted by VADEQ on 
February 26, 2007, March 5, 2007, March 12, 2007, March 19, 2007, and 
August 8, 2007. The SIP revision for each source consists of State 
operating permits that contain emission limits to ensure the 
Commonwealth meets its NOX budget for these sectors as 
required under the NOX SIP Call. Other specific requirements 
of the State operating permits and the rationale for EPA's proposed 
action are explained in the NPR and will not be restated here. No 
public comments were received on the NPR.

[[Page 64552]]

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 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 Clean Air Act is likewise 
unaffected by this, or any, state audit privilege or immunity law.

III. Final Action

    EPA is approving State operating permits for four Transcontinental 
Gas Pipeline Stations (Stations 165, 170, 175, and 180) and a State 
operating permit for Roanoke Cement Corporation as a revision to the 
Virginia SIP. The NOX emission reductions required by the 
permits address Virginia's remaining emission reduction obligations 
under the NOX SIP Call.

IV. 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. Section 804, however, exempts from section 801 the

[[Page 64553]]

following types of rules: Rules of particular applicability; rules 
relating to agency management or personnel; and rules of agency 
organization, procedure, or practice that do not substantially affect 
the rights or obligations of non-agency parties. 5 U.S.C. 804(3). 
Because this is a rule of particular applicability, EPA is not required 
to submit a rule report regarding this action under section 801.

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 December 29, 2008. 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, pertaining to EPA approval of 
NOX emission reductions from large stationary IC engines and 
large cement kilns in Virginia, may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Air pollution control, Environmental protection, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements.

    Dated: October 20, 2008.
Donald S. Welsh,
Regional Administrator, 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 (d) is amended by adding 
the entries for Transcontinental Pipeline Station 165, Transcontinental 
Pipeline Station 170, Transcontinental Pipeline Station 175, 
Transcontinental Pipeline Station 180 and Roanoke Cement Corporation at 
the end of the table to read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (d) * * *

                                    EPA-Approved Source-Specific Requirements
----------------------------------------------------------------------------------------------------------------
                                                                State
           Source name                  Permit/order or       effective     EPA approval date    40 CFR part 52
                                      registration number        date                               citation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Transcontinental Pipeline Station  Registration No. 30864..      1/24/07  10/30/08 [Insert
 165.                                                                      page number where
                                                                           the document
                                                                           begins].
Transcontinental Pipeline Station  Registration No. 30863..      1/24/07  10/30/08 [Insert
 170.                                                                      page number where
                                                                           the document
                                                                           begins].
Transcontinental Pipeline Station  Registration No. 40789..      1/30/07  10/30/08 [Insert
 175.                                                                      page number where
                                                                           the document
                                                                           begins].
Transcontinental Pipeline Station  Registration No. 40782..      2/13/07  10/30/08 [Insert
 180.                                                                      page number where
                                                                           the document
                                                                           begins].
Roanoke Cement Corporation.......  Registration No. 20232..      6/18/07  10/30/08 [Insert
                                                                           page number where
                                                                           the document
                                                                           begins].
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. E8-25668 Filed 10-29-08; 8:45 am]
BILLING CODE 6560-50-P