[Federal Register Volume 77, Number 176 (Tuesday, September 11, 2012)]
[Rules and Regulations]
[Pages 55695-55698]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-22207]


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ENVIRONMENTAL PROTECTION AGENCY

 40 CFR Part 52

[EPA-R03-OAR-2012-0280; FRL-9724-8]


Approval and Promulgation of Implementation Plans; Virginia; 
Revisions to the State Implementation Plan Approved by EPA Through 
Letter Notice Actions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; administrative change.

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SUMMARY: EPA is taking final action on administrative changes to the 
Virginia State Implementation Plan (SIP). The changes consist of 
revised regulatory citations found in Virginia's regulations pertaining 
to municipal solid waste landfills and open burning which EPA 
previously approved through a Letter Notice. EPA has determined that 
this action falls under the ``good cause'' exemption in the 
Administrative Procedure Act (APA). This exemption in the APA 
authorizes agencies to dispense with public participation and to make 
an action effective immediately, thereby avoiding the 30-day delayed 
effective date otherwise provided for in the APA.

DATES: This action is effective September 11, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2012-0280. All documents in the docket are listed in 
the 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

[[Page 55696]]

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 
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: Harold A. Frankford at (215) 814-2108, 
or by email at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' or 
``our'' refer to EPA.

I. What is being addressed in this document?

    EPA is taking final action on administrative changes to the 
Virginia SIP. On March 16, 2012, Virginia submitted a SIP revision 
which revises regulatory citations found in Regulations 9VAC5 Chapter 
40, Part I, Article 43 (Municipal Solid Waste Landfills) and Chapter 
130, Part I (Regulation for Open Burning). The amended text changes 
those citations which cross-reference Virginia's current Solid Waste 
Management Regulations (9VAC5-20-81). The affected SIP-approved 
regulations are sections 5-40-5810, 5-40-5820, 5-40-5850, 5-40-5880, 5-
40-5920, 5-130-20, and 5-130-40. EPA has determined that the revisions 
are minor SIP changes without any substantive changes, and that they 
comply with all applicable requirements of the CAA and EPA regulations 
concerning such SIP revisions. EPA approved these revisions through a 
Letter Notice to the Virginia Department of Environmental Quality 
(VADEQ) dated June 1, 2012 consistent with the procedures outlined in 
both EPA's Notice of Procedural Changes on SIP processing published on 
January 19, 1989 at 54 FR 2214 and a memorandum dated April 6, 2011 
entitled ``Regional Consistency for the Administrative Requirements of 
State Implementation Plan Submittals and the Use of Letter Notices'' 
from Janet McCabe, Deputy Assistant Administrator for the Office of Air 
and Radiation to the EPA Regional Administrators.

II. What action is EPA taking?

    Today's action merely codifies in 40 CFR 52.2420(c) the 
administrative amendments approved by EPA through its June 1, 2012 
Letter Notice to VADEQ. EPA has determined that this action falls under 
the ``good cause'' exemption in section 553(b)(3)(B) of the 
Administrative Procedure Act (APA). This exemption authorizes agencies 
to dispense with public participation and section 553(d)(3) which 
allows an agency to make an action effective immediately, thereby 
avoiding the 30-day delayed effective date otherwise provided for in 
the APA. With respect to the SIP revision described above, today's 
administrative action simply codifies provisions which are already in 
effect as a matter of law in Federal and approved state programs. Under 
section 553 of the APA, an agency may find good cause where procedures 
are ``impractical, unnecessary, or contrary to the public interest.'' 
Public comment for this administrative action is ``unnecessary'' 
because the revisions are administrative and non-substantive in nature. 
Immediate notice of this action in the Federal Register benefits the 
public by providing the public notice of the updated Virginia SIP. 
Approval of these revisions will ensure consistency between state and 
Federally-approved rules. EPA has determined that these changes will 
not relax the SIP or adversely impact air emissions.

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 that: (1) Are generated or developed 
before the commencement of a voluntary environmental assessment; (2) 
are prepared independently of the assessment process; (3) demonstrate a 
clear, imminent and substantial danger to the public health or 
environment; or (4) 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

[[Page 55697]]

any, state audit privilege or immunity law.

IV. Statutory and Executive Order Reviews

A. General Requirements

    Under the Clean Air Act (CAA), the Administrator is required to 
approve a SIP submission that complies with the provisions of the Act 
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 (CRA) (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. Section 808 allows the issuing agency to 
make a rule effective sooner than otherwise provided by the CRA if the 
agency makes a good cause finding that notice and public procedure is 
impracticable, unnecessary or contrary to the public interest. 5 U.S.C. 
808(2). In taking action on this SIP revision, EPA already made such a 
finding. Thus, the SIP revisions announced in this notice became 
effective upon EPA's June 1, 2012 Letter Notice to Virginia. Today's 
administrative action simply codifies a provision which is already in 
effect as a matter of law in Federal and approved state programs. EPA 
will submit a report containing this action and other information to 
the U.S. Senate, the U.S. House of Representatives, and the Comptroller 
General of the United States prior to publication of this action 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 November 13, 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. This action to codify in 40 CFR 52.2420(c) the administrative 
amendments approved by EPA through its June 1, 2012 Letter Notice to 
VADEQ 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 
record keeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: August 23, 2012.
 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 5-40-5810, 5-40-5820, 5-40-5850, 5-40-5880, 5-
40-5920, 5-130-20 and 5-130-40. The amendments read as follows:


Sec.  52.2420  Identification of plan

    (c) * * *

                                 EPA-Approved Virginia Regulations and Statutes
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                                                         State                              Explanation [former
       State citation            Title/Subject      effective date    EPA approval date        SIP citation]
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                                                  * * * * * * *
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                            9 VAC 5, Chapter 40 Existing Stationary Sources [Part IV]
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                                                  * * * * * * *
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                                           Part II Emission Standards
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                                                  * * * * * * *
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                             Article 43 Municipal Solid Waste Landfills (Rule 4-43)
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                                                  * * * * * * *
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5-40-5810..................  Definitions..........         8/17/11  6/1/12 by Letter       The SIP effective
                                                                     Notice.                date is 6/1/12.
5-40-5820..................  Standard for air              8/17/11  6/1/12 by Letter       The SIP effective
                              emissions.                             Notice.                date is 6/1/12.
 
                                                  * * * * * * *
5-140-5850.................  Compliance...........         8/17/11  6/1/12 by Letter       The SIP effective
                                                                     Notice.                date is 6/1/12.
 
                                                  * * * * * * *
5-40-5880..................  Reporting............         8/17/11  6/1/12 by Letter       The SIP effective
                                                                     Notice.                date is 6/1/12.
 
                                                  * * * * * * *
5-40-5920..................  Permits..............         8/17/11  6/1/12 by Letter       The SIP effective
                                                                     Notice.                date is 6/1/12.
 
                                                  * * * * * * *
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       9 VAC 5, Chapter 130 Regulations for Open Burning [Formerly 9VAC5 Chapter 40, Part II, Article 40]
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                                            Part I General Provisions
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                                                  * * * * * * *
5-130-20...................  Definitions..........         8/17/11  6/1/12 by Letter       The SIP effective
                                                                     Notice.                date is 6/1/12.
 
                                                  * * * * * * *
5-130-40...................  Permissible open              8/17/11  6/1/12 by Letter       The SIP effective
                              burning.                               Notice.                date is 6/1/12.
 
                                                  * * * * * * *
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[FR Doc. 2012-22207 Filed 9-10-12; 8:45 am]
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