[Federal Register Volume 76, Number 162 (Monday, August 22, 2011)]
[Rules and Regulations]
[Pages 52275-52278]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-21267]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2011-0195; FRL-9453-6]


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

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 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: Effective Date: This final rule is effective on September 21, 
2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2011-0195. 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: 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

[[Page 52276]]

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 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. 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 of Virginia'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, 
therefore Virginia was required to modify its CAIR SIP to be consistent 
with the revised Federal definition.

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. On May 26, 2011 (76 FR 30600), the 
NPR was published for public comment. Other specific requirements 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.

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 Arequired 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.

IV. Final Action

    EPA is approving the Virginia CAIR revisions submitted on September 
27, 2010 as a revision to the Virginia SIP. The revisions are 
consistent with CAIR requirements.

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

[[Page 52277]]

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 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 October 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. This action approving revisions to Virginia's CAIR 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, Incorporation by 
reference, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides.

    Dated: August 3, 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 Chapter 140, Sections 5-140-1010, 5-140-1020, 5-140-
1060, 5-140-2010, 5-140-2020, 5-140-3010, and 5-140-3020 to read as 
follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

                                 EPA-Approved Virginia Regulations and Statutes
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                                                   State                                           Explanation
        State citation          Title/subject    effective           EPA approval date             [former SIP
                                                    date                                            citation]
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                                                  * * * * * * *
                              9 VAC 5, Chapter 140 Regulation for Emissions Trading
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                                                  * * * * * * *
                                       Part II NOX Annual Trading Program
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                          Article 1 CAIR NOX Annual Trading Program General Provisions
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5-140-1010...................  Purpose and          3/18/09  8/22/11 [Insert page number where  ................
                                Authority.                    the document begins]
5-140-1020...................  Definitions....      3/18/09  8/22/11 [Insert page number where  ................
                                                              the document begins]
 
                                                  * * * * * * *
5-140-1060...................  Standard             3/18/09  8/22/11 [Insert page number where  ................
                                Requirements.                 the document begins]
 
                                                  * * * * * * *
                                    Part III NOX Ozone Season Trading Program
----------------------------------------------------------------------------------------------------------------
                       Article 1 CAIR NOX Ozone Season Trading Program General Provisions.
5-140-2010...................  Purpose and          3/18/09  8/22/11 [Insert page number where  ................
                                Authority.                    the document begins]

[[Page 52278]]

 
5-140-2020...................  Definitions....      3/18/09  8/22/11 [Insert page number where  ................
                                                              the document begins]
 
                                                  * * * * * * *
                                       Part IV SO2 Annual Trading Program
----------------------------------------------------------------------------------------------------------------
                              Article 1 CAIR SO2 Trading Program General Provisions
5-140-3010...................  Purpose and          3/18/09  8/22/11 [Insert page number where
                                Authority.                    the document begins]
5-140-3020...................  Definitions....      3/18/09  8/22/11 [Insert page number where
                                                              the document begins]
 
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[FR Doc. 2011-21267 Filed 8-19-11; 8:45 am]
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