[Federal Register Volume 76, Number 215 (Monday, November 7, 2011)]
[Rules and Regulations]
[Pages 68638-68641]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-28640]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2011-0773; FRL-9487-6]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Revision to Nitrogen Oxides Budget Trading Program

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 
Virginia State Implementation Plan (SIP). The revision pertains to 
regulatory language in its nitrogen oxides (NOX) Budget 
Trading Program that inadvertently ended its NOX budget at 
the end of the 2008 ozone season. EPA is approving this revision in 
accordance with the requirements of the Clean Air Act (CAA).

DATES: This rule is effective on January 6, 2012 without further 
notice, unless EPA receives adverse written comment by December 7, 
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-2011-0773 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. Email: [email protected].
    C. Mail: EPA-R03-OAR-2011-0773, 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-
2011-0773. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at 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

[[Page 68639]]

consider to be CBI or otherwise protected through www.regulations.gov 
or e-mail. The 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 email comment directly to EPA without going through 
www.regulations.gov, your email 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 
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 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 
email at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    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 formal revision 
to its State Implementation Plan (SIP).
    The SIP revision pertains to the NOX budget established 
in Virginia regulation 9VAC5 Chapter 140 Part I (NOX Budget 
Trading Program), which was adopted by the Commonwealth and approved 
into its SIP to meet the requirements of the NOX SIP Call. 
Virginia determined that regulatory language inadvertently ended the 
State budget at the end of the 2008 ozone season. Because the 
NOX SIP Call requirements continue to apply to the affected 
states, revision of the applicable end date in regulation 9VAC5 Chapter 
140, Part I is required in order for the budget to apply to ozone 
season 2009 and beyond. It should be noted that Virginia has continued 
to comply with the requirements of the NOX SIP Call through 
its approved Clean Air Interstate Rule (CAIR) NOX Ozone 
Season Trading Program at 9VAC5 Chapter 140, Part III. As explained in 
the preamble for CAIR (70 FR 25162, May 12, 2005), states could meet 
the requirements of the NOX SIP Call by achieving all of the 
emissions reductions required under CAIR from electric generating units 
(EGUs) by participating in the CAIR Ozone Season NOX Trading 
Program, and by bringing its non-EGUs that were participating in the 
NOX SIP Call Budget Trading Program into the CAIR Ozone 
Season NOX Trading Program using the same non-EGU budget and 
applicability requirements that were in their NOX SIP Call 
Budget Trading Program. Virginia chose to implement its CAIR ozone 
season NOX obligations by participating in the CAIR Ozone 
Season NOX Trading Program and brought their non-EGUs into 
this program, which was approved into the Virginia SIP on December 28, 
2007 (72 FR 73602).

II. Summary of SIP Revision

    On September 27, 2010, VADEQ submitted a SIP revision that extends 
the NOX SIP Call budget beyond the 2008 ozone season. The 
SIP revision consists of amendments to sections 5-140-900, 5-140-920, 
and 5-140-930 that extend the EGU NOX budget of 17,091 tons 
and the non-EGU budget of 4,104 tons to the 2009 ozone season and each 
ozone season thereafter.

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

[[Page 68640]]

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 SIP revision submitted by VADEQ on September 
27, 2009 that extends the NOX SIP Call budget beyond the 
2008 ozone season. 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 January 6, 
2012 without further notice unless EPA receives adverse comment by 
December 7, 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 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);
     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 January 6, 2012. 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 to extend Virginia's budget under the 
NOX SIP Call 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, Sulfur oxides.

    Dated: October 25, 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 5-140-900, 5-140-920, and 5-140-930 to read as 
follows:

[[Page 68641]]

Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

                                                     EPA-Approved Virginia Regulations and Statutes
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                                                                        State  effective                                       Explanation [former SIP
          State citation                      Title/subject                   date                 EPA approval date                  citation]
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9 VAC 5,                                                                        State trading program budget
Chapter 140
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Part I                                                                           NOX Budget Trading Program
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                                                                      * * * * * * *
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Article 10                                                       State Trading Program Budget and Compliance Supplement Pool
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5-140-900.........................  State trading program budget.....  12/31/08..........  11/7/11 [Insert page number       Revise applicable year to
                                                                                            where the document begins].       2004 and each year
                                                                                                                              thereafter.
 
                                                                      * * * * * * *
5-140-920.........................  Total electric generating unit     12/31/08..........  11/7/11 [Insert page number       Add subsection B, which
                                     allocations.                                           where the document begins].       extends the NOX budget
                                                                                                                              beyond 2008.
5-140-930.........................  Total non-electric generating      12/31/08..........  11/7/11 [Insert page number       Add subsection B, which
                                     unit allocations.                                      where the document begins].       extends the NOX budget
                                                                                                                              beyond 2008.
 
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[FR Doc. 2011-28640 Filed 11-4-11; 8:45 am]
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