[Federal Register Volume 76, Number 102 (Thursday, May 26, 2011)]
[Proposed Rules]
[Pages 30600-30602]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-13068]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2011-0195; FRL-9311-8]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Revisions to Clean Air Interstate Rule Emissions Trading 
Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) 
revision submitted by the Commonwealth of Virginia. The revision, which 
amends the Virginia Clean Air Interstate Rule (CAIR) trading program, 
is comprised of technical corrections and revisions to the definition 
of a cogeneration unit to ensure the Commonwealth's CAIR trading 
program is consistent with Federal CAIR requirements. This action is 
being taken under the Clean Air Act (CAA).

DATES: Written comments must be received on or before June 27, 2011.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2011-0195 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-2011-0195, Cristina Fernandez, Associate 
Director, Office of Air Quality Planning, Mailcode 3AP30, 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. EPA-R03-OAR-
2011-0195. 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

[[Page 30601]]

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: Marilyn Powers, (215) 814-2308, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. On September 27, 2010, the 
Commonwealth of Virginia Department of Environmental Quality (VADEQ) 
submitted a revision to its SIP, including technical corrections and 
revisions to the definition of a cogeneration unit to ensure the 
Commonwealth's CAIR trading program is consistent with Federal CAIR 
requirements.

I. Background

    EPA approved Virginia's CAIR trading program on December 28, 2007 
(72 FR 73602). In the notice of proposed rulemaking (NPR) for 
Virginia's CAIR trading program (72 FR 54385, September 25, 2007), EPA 
noted that it believed that Virginia clearly intended to replace the 
CAIR Federal Implementation Plan (FIP) with a State plan based on the 
CAIR model rule that would allow subject sources, non-EGUs from its 
Nitrogen Oxides (NOX) SIP Call budget trading program, and 
opt-in units meeting the CAIR opt-in criteria to participate in the 
EPA-administered regional CAIR trading program. However, EPA also noted 
that there were some provisions of Virginia CAIR regulations 9 VAC 5 
Chapter 140, Parts II, III, and IV that could be interpreted in a way 
that might be inconsistent with the Commonwealth's intent. These 
provisions pertain to definitions associated with Virginia's 
participation in the regional CAIR trading program, definitions 
associated with the State's decision to bring its non-EGUs from its 
NOX SIP Call budget trading program into the CAIR trading 
program, and a definition of the term ``most stringent state or Federal 
NOX emissions limitation'' that is based upon the model rule 
but had been expanded by the Commonwealth to include the situation 
where more than one fuel is allowed by a permit. EPA determined that 
VADEQ's interpretations of these provisions, provided in its letter 
dated September 12, 2007, clarified the language of the Virginia 
regulations and were consistent with having the EPA-administered CAIR 
trading program become effective in Virginia. However EPA recommended, 
and VADEQ agreed to, promulgation of clarifying amendments to these 
provisions at the Commonwealth's earliest opportunity.
    Also, in a rulemaking dated October 19, 2007 (72 FR 59190), EPA 
changed the definition of ``cogeneration unit'' in CAIR, the CAIR model 
cap and trade rule, and the CAIR FIP with respect to the calculation 
methodology for the efficiency standard of a cogeneration unit. The 
revised methodology excluded energy input from biomass, making it more 
likely that units co-firing biomass would be able to meet the 
efficiency standard and qualify for the cogeneration exemption allowed 
by CAIR. This change to the Federal requirements was made subsequent to 
Virginia's adoption of its CAIR regulations, therefore Virginia is 
required to revise its CAIR regulations to incorporate the changes to 
the definition of cogeneration unit to allow the exemption for biomass 
units to apply to sources in the Commonwealth.

II. Summary of SIP Revision

    On September 27, 2010, VADEQ submitted a SIP revision that amended 
Virginia's CAIR regulations. The SIP revision incorporates the 
clarifying revisions specified in the September 25, 2007 NPR proposing 
approval of Virginia's CAIR regulations and the changes to the 
definition of ``cogeneration unit'' made in EPA's revised CAIR 
rulemaking dated October 19, 2007. The submission also included several 
other technical or administrative corrections to these regulations.
    The SIP revision applies to the CAIR NOX Annual Trading 
Program (9 VAC5 Chapter 140, Part II), the CAIR NOX Ozone 
Season Trading Program (9 VAC 5 Chapter 140, Part III), and the CAIR 
SO2 Annual Trading Program (9 VAC 5 Chapter 140, Part IV). 
The provisions of regulations 5-140-1010, 5-140-2010, and 5-140-3010 
relating to ``Purpose,'' and the definitions of ``CAIR NOX 
Annual Trading Program,'' ``CAIR NOX Ozone Season Trading 
Program,'' ``CAIR SO2 Trading Program,'' and ``permitting 
authority'' in regulations 5-140-1020, 5-140-2020, and 5-140-3020 are 
amended to clarify that the Commonwealth's CAIR sources are full 
participants in the EPA-administered regional CAIR trading programs and 
that the Virginia CAIR programs are not trading programs only for 
sources geographically located within the borders of the Commonwealth. 
The definition of ``most stringent state or Federal NOX 
emissions limitation'' in regulations 5-140-1020, 5-140-2020, and 5-
140-3020 is amended to clarify that the primary fuel, where it is not 
designated in the permit, is the fuel that would result in the lowest 
emission rate. Additionally, the provisions of regulations 5-140-1020, 
5-140-2020, and 5-140-3020 are amended to reflect the changes to the 
definition of ``cogeneration unit'' that were made to the Federal CAIR 
program described previously.

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

[[Page 30602]]

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.

III. Proposed Action

    EPA is proposing to approve the Virginia SIP revision amending the 
Commonwealth's CAIR regulations codified at 9 VAC5 Chapter 140, Parts 
I, II, and III, which was submitted on September 27, 2010. EPA's 
analysis shows that the revisions are consistent with Federal CAIR 
requirements. EPA is soliciting public comments on the issues discussed 
in this document. These comments will be considered before taking final 
action.

IV. Statutory and Executive Order Reviews

    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 proposes to approve state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed 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 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 proposed rule approving Virginia revisions to its 
CAIR trading program 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Nitrogen dioxide, 
Ozone, Particulate matter, Reporting and recordkeeping requirements, 
Sulfur oxides.

    Authority:  42 U.S.C. 7401 et seq.

    Dated: May 9, 2011.
W.C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2011-13068 Filed 5-25-11; 8:45 am]
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