[Federal Register Volume 79, Number 153 (Friday, August 8, 2014)]
[Rules and Regulations]
[Pages 46351-46353]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-18639]



40 CFR Part 52

[EPA-R03-OAR-2010-0160; FRL-9914-70-Region 3]

Commonwealth of Virginia; Infrastructure Requirements for the 
1997 8-Hour Ozone and the 1997 and 2006 Fine Particulate Matter 
National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; correcting amendments.


SUMMARY: The Environmental Protection Agency (EPA) is correcting errors 
in the rule language of a final rule pertaining to the infrastructure 
requirements for the 1997 8-hour ozone and the 1997 and 2006 fine 
particulate matter (PM2.5) national ambient air quality 
standards (NAAQS).

DATES: This final rule is effective on August 8, 2014.

FOR FURTHER INFORMATION CONTACT: Ellen Schmitt, (215) 814-5787, or by 
email at [email protected].


I. Background

    On October 11, 2011, EPA published a final rulemaking action 
announcing the approval of several infrastructure elements for the 1997 
ozone, 1997 PM2.5, and 2006 PM2.5 NAAQS for the 
Commonwealth of Virginia's State Implementation Plan (SIP). 76 FR 
62635. In that final rulemaking, EPA approved the addition of section 
10.1-1302 of the Code of Virginia into the Virginia SIP; however, in 
that rulemaking action, EPA inadvertently failed to include amendatory 
language which would have added an entry to the EPA-approved Virginia 
regulations table at 40 CFR 52.2420(c). This rulemaking action corrects 
that omission.

[[Page 46352]]

    Section 553(b)(3)(B) of the Administrative Procedure Act provides 
that when an agency, for good cause, finds that notice and public 
procedure are impracticable, unnecessary, or contrary to the public 
interest, the agency may issue a rule without providing notice and an 
opportunity for public comment. EPA has determined that there is good 
cause for making this rule final without prior proposal and opportunity 
for comment because EPA is merely correcting an errant omission of 
amendatory language from a previous rulemaking action. Thus, notice and 
public procedure are unnecessary. EPA finds that this constitutes good 
cause under 5 U.S.C. 553(b)(3)(B).

II. 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 
PSD, NSR, or Title V 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. Statutory and Executive Order Reviews

    Under Executive Order (E.O.) 12866 (58 FR 51735, October 4, 1993), 
this action is not a ``significant regulatory action'' and is therefore 
not subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)). Because 
the agency has made a ``good cause'' finding that this action is not 
subject to notice-and-comment requirements under the Administrative 
Procedures Act or any other statute as indicated in the Supplementary 
Information section above, it is not subject to the regulatory 
flexibility provisions of the Regulatory Flexibility Act (5 U.S.C 601 
et seq.), or to sections 202 and 205 of the Unfunded Mandates Reform 
Act of 1995 (UMRA) (Pub. L. 104-4). In addition, this action does not 
significantly or uniquely affect small governments or impose a 
significant intergovernmental mandate, as described in sections 203 and 
204 of UMRA. This rule also does not have a substantial direct effect 
on one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes, as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor 
will it have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
governments, as specified by Executive Order 13132 (64 FR 43255, August 
10, 1999). This rule also is not subject to Executive Order 13045 (62 
FR 19885, April 23, 1997), because it is not economically significant.
    This technical correction action does not involve technical 
standards, thus the requirements of section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do 
not apply. The rule also does not involve special consideration of 
environmental justice related issues as required by Executive Order 
12898 (59 FR 7629, February 16, 1994). In issuing this rule, EPA has 
taken the necessary steps to eliminate drafting errors and ambiguity, 
minimize potential litigation, and provide a clear legal standard for 
affected conduct, as required by section 3 of Executive Order 12988 (61 
FR 4729, February 7, 1996). EPA has complied with Executive Order 12630 
(53 FR 8859, March 15, 1998) by examining the takings implications of 
the rule in accordance with the ``Attorney General's Supplemental 
Guidelines for the Evaluation of Risk and Avoidance of Unanticipated 
Takings'' issued under the executive order. This rule does not impose 
an information collection burden under the Paperwork Reduction Act of 
1995 (44 U.S.C. 3501 et seq.).
    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

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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. This determination must 
be supported by a brief statement. 5 U.S.C. 808(2). As stated 
previously, EPA had made such a good cause finding, including the 
reasons therefore, and established an effective date of August 8, 2014. 
EPA will submit a report containing this rule 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. This correction to 40 CFR 52.2420 for 
Virginia is not a ``major rule'' as defined by 5 U.S.C. 804(2).

    Dated: July 10, 2014.
W.C. Early,
Acting Regional Administrator, Region III.

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, Volatile organic compounds.
    For the reasons stated in the preamble, 40 CFR part 52 is amended 
as follows:


1. The authority citation for 40 CFR part 52 continues to read as 

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

Subpart VV--Virginia

2. Section 52.2420 is amended by adding, in numerical order, an entry 
for Section 10.1-1302 under the heading ``Code of Virginia'' in the 
table in paragraph (c) to read as follows:

Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

                                 EPA-Approved Virginia Regulations and Statutes
                                                               State                              Explanation
         State citation                 Title/subject        effective    EPA approval date       [former SIP
                                                                date                               citation]
                                                  * * * * * * *
                                                Code of Virginia
Section 10.1-1302...............  Qualifications of              7/1/08  10/11/11, 76 FR      Section added.
                                   members of Boards.                     62635.
                                                  * * * * * * *

* * * * *
[FR Doc. 2014-18639 Filed 8-7-14; 8:45 am]