[Federal Register Volume 76, Number 11 (Tuesday, January 18, 2011)]
[Rules and Regulations]
[Pages 2829-2832]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-487]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2010-0881; FRL-9251-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Adoption of 8-hour Ozone Standard and Related Reference 
Conditions, and Update of Appendices

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve a revision to the 
Commonwealth of Virginia State Implementation Plan (SIP). The revision 
adds the 2008 8-hour ozone National Ambient Air Quality Standard 
(NAAQS) of 0.075 parts per million (ppm) and related reference 
conditions and updates the list of appendices under ``Documents 
Incorporated by Reference.'' Virginia's SIP revision for the NAAQS for 
ozone is consistent with the 8-hour Federal standard. This action is 
being taken under the Clean Air Act (CAA).

DATES: This rule is effective on March 21, 2011 without further notice, 
unless EPA receives adverse written comment by February 17, 2011. 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 Docket ID Number EPA-
R03-OAR-2010-0881 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: [email protected].
    C. Mail: EPA-R03-OAR-2010-0881, Marilyn Powers, Acting Associate 
Director, Office of Air Program Planning, Mailcode 3AP30, U.S. 
Environmental Protection Agency,

[[Page 2830]]

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-
2010-0881. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at http://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 http://www.regulations.gov or e-mail. The http://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 e-mail comment directly to EPA without 
going through http://www.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.
    Docket: All documents in the electronic docket are listed in the 
http://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 http://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: Irene Shandruk, (215) 814-2166, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On September 27, 2010, the Commonwealth of Virginia submitted a 
formal revision to its SIP. The SIP revision amends the existing SIP to 
add the 2008 8-hour ozone NAAQS and related reference conditions.
    The Clean Air Act (CAA) specifies that EPA must reevaluate the 
appropriateness of each of the NAAQS every five years. As part of the 
process, EPA reviewed the latest health-based research and determined 
that a revised NAAQS for ozone was necessary to protect public health. 
EPA revised the 8-hour standard to a level of 0.075 parts per million 
(ppm) to provide increased protection for children and other ``at 
risk'' populations against an array of ozone-related adverse health 
effects. EPA promulgated this more stringent NAAQS for ozone on March 
27, 2008 (73 FR 16436).

II. Summary of SIP Revision

    On September 27, 2010, the Commonwealth of Virginia submitted a 
formal revision to its SIP. The SIP revision consists of an amendment 
which includes the revised ambient air quality standard for ozone, and 
related reference conditions. Virginia's revision incorporates the 
Federal 8-hour ozone NAAQS into the Code of Virginia (9VAC5 Chapter 
30). In addition, the list of appendices to 40 CFR Part 51 is being 
updated under documents incorporated by reference (9VAC5-20-21).
    The following are the specific sections that are being modified or 
added:
     9VAC5-20-21: Documents incorporated by reference 
(modified).
     9VAC5-30-55: Ozone (8-hour, 0.08 ppm) (modified).
     9VAC5-30-56: Ozone (8-hour, 0.075 ppm) (added).

III. General Information Pertaining to SIP Submittals From the 
Commonwealth of Virginia

    In 1995, Virginia adopted legislation that provides for, subject to 
certain conditions, 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

[[Page 2831]]

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. Final Action

    EPA is approving Virginia's SIP revisions for the 2008 ozone NAAQS 
and related reference conditions, as well as the updated list of 
appendices to 40 CFR part 51 under ``Documents Incorporated by 
Reference.'' 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 approve the SIP revision if adverse 
comments are filed. This rule will be effective on March 21, 2011 
without further notice unless EPA receives adverse comment by February 
17, 2011. 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. Please note that if 
EPA receives adverse comment on an amendment, paragraph, or section of 
this rule and if that provision may be severed from the remainder of 
the rule, EPA may adopt as final those provisions of the rule that are 
not the subject of an adverse comment.

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 March 21, 2011. 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. Parties with objections to this direct final 
rule are encouraged to file a comment in response to the parallel 
notice of proposed rulemaking for this action published in the proposed 
rules section of today's Federal Register, rather than file an 
immediate petition for judicial review of this direct final rule, so 
that EPA can withdraw this direct final rule and address the comment in 
the proposed rulemaking. This action pertaining to Virginia's adoption 
of the 2008 8-hour ozone NAAQS of 0.075 parts per million (ppm) and 
related reference conditions 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, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: December 22, 2010.
W.C. Early,
Acting Regional Administrator, Region III.
    40 CFR part 52 is amended as follows:

[[Page 2832]]

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 revising 
the entry for Section 5-30-55 and by adding the entry for Section 5-30-
56. The table in paragraph (e) is amended by adding an entry for 
``Documents Incorporated by Reference'' after the ninth existing entry 
for ``Documents Incorporated by Reference.'' The amendments read as 
follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

                                 Epa-Approved Virginia Regulations and Statutes
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                                                            State
         State citation               Title/subject       effective   EPA approval date  Explanation [former SIP
                                                             date                               citation]
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                                                  * * * * * * *
                          9 VAC 5, Chapter 30 Ambient Air Quality Standards [Part III]
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                                                  * * * * * * *
5-30-55........................  Ozone (8-hour, 0.08         6/24/09  1/18/11 [Insert    Revised section.
                                  ppm).                                page number
                                                                       where the
                                                                       document begins].
5-30-56........................  Ozone (8-hour, 0.075        6/24/09  1/18/11 [Insert    Added section.
                                  ppm).                                page number
                                                                       where the
                                                                       document begins].
 
                                                  * * * * * * *
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* * * * *
    (e) * * *


----------------------------------------------------------------------------------------------------------------
                                                         State
   Name of non-regulatory SIP         Applicable       submittal    EPA approval date   Additional  explanation
            revision                geographic area       date
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                                                  * * * * * * *
Documents Incorporated by         Statewide.........      9/27/10  1/18/11 [Insert     Revised sections.
 Reference (9 VAC 5-20-21,                                          page number where
 Sections B and E.1.).                                              the document
                                                                    begins].
 
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[FR Doc. 2011-487 Filed 1-14-11; 8:45 am]
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