[Federal Register Volume 76, Number 199 (Friday, October 14, 2011)]
[Proposed Rules]
[Pages 63859-63860]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-26628]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2011-0731; FRL-9479-5]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Amendments to Virginia's Regulation Regarding the Sulfur 
Dioxide National Ambient Air Quality Standard

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 (Virginia). This 
revision pertains to amendments of Virginia's regulations regarding the 
new 1-hour primary national ambient air quality standard (NAAQS) for 
sulfur dioxide (SO2). This action is being taken under the 
Clean Air Act (CAA).

DATES: Written comments must be received on or before November 14, 
2011.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2011-0731 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-2011-0731, Cristina Fernandez, Associate 
Director, Office of Air Program 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-
2011-0731. 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: Asrah Khadr, (215) 814-2071, or by e-
mail at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. On July 12, 2011, the Virginia 
Department of Environmental Quality submitted a SIP revision pertaining 
to amendments of Virginia's regulations regarding the new 1-hour 
primary NAAQS for SO2. EPA is proposing to approve this SIP 
revision.

I. Background

    On June 2, 2010, EPA announced a new 1-hour primary NAAQS for 
SO2 of 75 parts per billion (ppb), which is attained when 
the 3-year average of the 99th-percentile of the annual distribution of 
daily maximum 1-hour average concentrations does not exceed 75 ppb at 
each monitor within an area. On June 22, 2010 (75 FR 35520), the final 
rule for the 1-hour primary NAAQS for SO2 was published and 
became effective on August 23, 2010. This rule also revoked the 
previous 24-hour and annual primary NAAQS for SO2. On July 
12, 2011, the Virginia Department of Environmental Quality submitted a 
SIP revision pertaining to the adoption of the new SO2 
standard. The Virginia SIP revision consists of amending the state 
regulations by adopting the new 1-hour primary SO2 NAAQS of 
75 ppb as well as the nullification of the previous annual primary 
SO2 standard of 30 ppb, and 24-hour primary SO2 
standard of 140 ppb. The previous standards will be revoked one year 
after the effective date of the designations of the 1-hour primary 
SO2 standard of 75 ppb, pursuant to section 107 of the CAA.

II. Summary of SIP Revision

    The amendments to Virginia's regulations include the adoption of 
the new 1-hour SO2 NAAQS and the nullification of the 
previous annual and 24-hour primary SO2 NAAQS, one year 
after designations for the new 1-hour primary SO2 NAAQS. 
These amendments can be found under Regulation 9VAC5-30-30. There were 
also administrative changes regarding these amendments. These changes 
include updates to documents incorporated by reference under 40 CFR 
part 50, as well as administrative changes in regards to those updates. 
These changes can be found under Regulation 9VAC5-20-21.E.1.

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

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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.

IV. Proposed Action

    EPA is proposing to approve the Virginia SIP revision for the 
adoption of the new 1-hour primary SO2 NAAQS at a level of 
75 ppb to the state regulations, which was submitted on July 12, 2011. 
EPA is soliciting public comments on the issues discussed in this 
document. These comments will be considered before taking final action.

V. 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, the proposed approval of the adoption of the 1-hour 
primary SO2 NAAQS into Virginia's regulation 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, Intergovernmental 
relations, Reporting and recordkeeping requirements, Sulfur oxides.

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

    Dated: October 3, 2011.
W.C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2011-26628 Filed 10-13-11; 8:45 am]
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