[Federal Register Volume 76, Number 79 (Monday, April 25, 2011)]
[Rules and Regulations]
[Pages 22814-22817]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-9697]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2010-0882; FRL-9298-1]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Adoption of the Revised Lead Standards and Related Reference 
Conditions and Update of Appendices

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 revisions add the 
primary and secondary lead standards of 0.15 micrograms per cubic meter 
([mu]g/m\3\), related reference conditions, and update the list of 
appendices under ``Documents Incorporated by Reference.'' Virginia's 
SIP revisions for the National Ambient Air Quality Standards (NAAQS) 
for lead are consistent with the Federal lead standards. This action is 
being taken under the Clean Air Act (CAA).

DATES: Effective Date: This final rule is effective on May 25, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2010-0882. 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: Irene Shandruk, (215) 814-2166, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On January 26, 2011 (76 FR 4579), EPA published a notice of 
proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR 
proposed approval of Virginia's SIP revision pertaining to the NAAQS 
for lead and related reference conditions. The CAA specifies that EPA 
must re-evaluate the appropriateness of the NAAQS every five years. As 
part of the process, EPA reviewed the latest research and determined 
that revised standards for lead were necessary to protect public health 
and welfare. EPA revised the level of the primary lead standard to a 
level of 0.15 [mu]g/m\3\ to provide increased protection for children 
and other ``at risk'' populations. The secondary standard was also 
revised to a level of 0.15 [mu]g/m\3\ to afford increased protection 
for the environment. EPA promulgated the more stringent primary and 
secondary NAAQS for lead on November 12, 2008 (73 FR 66964). One 
adverse comment was submitted on EPA's January 26, 2011 NPR (76 FR 
4579). A summary of the comment and EPA's response is provided in 
section IV of this document.

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 primary and secondary NAAQS for lead and 
related reference conditions. Virginia's revision incorporates the 
Federal lead standards

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into the Code of Virginia (9VAC5 Chapter 30). In addition, the list of 
appendices to 40 CFR Part 51 was updated under ``Documents Incorporated 
by Reference'' (9VAC5-20-21).
    The following are the specific sections that are being modified or 
amended:
     9VAC5-20-21: Documents Incorporated by Reference 
(modified)
     9VAC5-30-15: Reference Conditions (modified)
     9VAC5-30-80: Lead (amended)

III. 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 CAA is likewise unaffected by 
this, or any, state audit privilege or immunity law. Other specific 
requirements and the rationale for EPA's proposed action are explained 
in the NPR and will not be restated here. As noted below, EPA received 
one comment on the NPR and it was not germane.

IV. Summary of Public Comments and EPA Responses

    Comment: A small business owner expressed concern about having 
additional costs imposed upon individuals who work on lead paint-
containing homes built before 1978. The commenter stated that the 
business climate cannot support another regulation and expressed 
concern about being able to remain in business with the adoption of 
this rule.
    Response: This comment is not relevant to this rulemaking action. 
The commenter discusses lead as it relates to lead-containing paints 
and the requirement for its removal in homes built prior to 1978. This 
action imposes no requirements with respect to the removal of lead-
containing paint from homes built prior to 1978. This action is 
concerned with the adoption of the 2008 lead NAAQS by the Commonwealth 
of Virginia into the Commonwealth's SIP.

V. Final Action

    EPA is approving Virginia's SIP revision for the lead NAAQS and 
related reference conditions, as well as the updated list of appendices 
to 40 CFR part 51 under documents incorporated by reference.

VI. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA 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 CAA. 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);

[[Page 22816]]

     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 CAA; 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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by June 24, 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. This action pertaining to Virginia's adoption of the revised 
lead standards of 0.15 [mu]g/m\3\ 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, Lead, Reporting and recordkeeping requirements.

    Dated: April 6, 2011.
W.C. Early,
Acting Regional Administrator, Region III.

    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 revising 
the entries for Sections 5-30-15 and 5-30-80. 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
----------------------------------------------------------------------------------------------------------------
                                                         State         EPA approval     Explanation [former SIP
       State citation             Title/subject     effective  date        date                citation]
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                          9 VAC 5, Chapter 30 Ambient Air Quality Standards [Part III]
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
5-30-15.....................  Reference conditions  6/24/09........  4/25/11 [Insert  Revised section.
                                                                      page number
                                                                      where the
                                                                      document
                                                                      begins].
 
                                                  * * * * * * *
5-30-80.....................  Lead................  6/24/09........  4/25/11 [Insert  Amended paragraphs A. and
                                                                      page number      B.; added paragraph C.
                                                                      where the
                                                                      document
                                                                      begins].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
                                                          State
    Name of non-regulatory SIP         Applicable       submittal    EPA approval date   Additional  explanation
             revision                geographic area       date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Documents Incorporated by          Statewide.........      9/27/10  4/25/11 [Insert     Revised sections.
 Reference (9 VAC 5-20-21,                                           page number where
 Sections E.1.a.(1)(q) and                                           the document
 E.1.a.(1)(r)).                                                      begins].
 
                                                  * * * * * * *
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[FR Doc. 2011-9697 Filed 4-22-11; 8:45 am]
BILLING CODE 6560-50-P