

[Federal Register: October 18, 2007 (Volume 72, Number 201)]
[Rules and Regulations]               
[Page 59017-59019]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18oc07-10]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R03-OAR-2005-VA-0012; FRL-8484-4]

 
Approval and Promulgation of State Air Quality Plans for 
Designated Facilities and Pollutants; Commonwealth of Virginia; Control 
of Total Reduced Sulfur From Pulp and Paper Mills

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a Section 111(d) Plan revision submitted by 
the Commonwealth of Virginia. The revision consists of amendments to 
the regulation that controls total reduced sulfur (TRS) from pulp and 
paper mills. This action is being taken under the Clean Air Act (CAA).

DATES: Effective Date: This final rule is effective on November 19, 
2007.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2005-VA-0012. 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: LaKeshia Robertson, (215) 814-2113, or 
by e-mail at robertson.lakeshia@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    On July 3, 2007 (72 FR 36413), EPA published a notice of proposed 
rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed 
approval of amendments to Virginia's Section 111(d) Plan to control TRS 
from pulp and paper mills (9 VAC 5, Chapter 40, Article 13, Rule 4-13). 
The formal SIP revision was submitted by the Commonwealth of Virginia 
on June 20, 2005. Other specific requirements of Virginia's plan to 
control TRS from pulp and paper mills and the rational for EPA's 
proposed action are explained in the NPR and will not be restated here. 
No public comments were received on the NPR.

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 (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

[[Page 59018]]

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 
(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 Clean Air Act is likewise 
unaffected by this, or any, state audit privilege or immunity law.

III. Final Action

    EPA is approving the amendments to an existing regulation (9 VAC 5, 
Chapter 40, Article 13, Rule 4-13) as a revision to the Virginia 
Section 111(d) Plan submitted on June 20, 2005.

IV. Statutory and Executive Order Reviews

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is 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). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it 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). This rule also does not 
have tribal implications because it will 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). 
This action also does not have Federalism implications because it does 
not 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 government, 
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). 
This action merely approves a state rule implementing a Federal 
requirement, and does not alter the relationship or the distribution of 
power and responsibilities established in the CAA. This rule also is 
not subject to Executive Order 13045 ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997), because it approves a state rule implementing a Federal 
standard.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence of a prior existing requirement for the State 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the CAA. 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. This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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 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 rule 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 December 17, 2007. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule 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 the amendments to Virginia's Section 111(d) 
Plan, may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 62

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Aluminum, Fertilizers, Fluoride, 
Intergovernmental relations, Paper and paper products industry, 
Phosphate, Reporting and recordkeeping requirements, Sulfur oxides, 
Sulfur acid plants, Waste treatment and disposal.

    Dated: October 10, 2007.
William T. Wisniewski,
Acting Regional Administrator, Region III.

0
40 CFR part 62 is amended as follows:

[[Page 59019]]

PART 62--[AMENDED]

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1. The authority citation for part 62 continues to read as follows:

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

Subpart VV--Virginia

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2. Section 62.11610 is amended by adding paragraph (d) to read as 
follows:


Sec.  62.11610  Identification of plan.

* * * * *
    (d) On June 20, 2005, the Commonwealth of Virginia submitted 
changes to its 111(d) Plan. The changes consist of amendments to 9 VAC 
5, Chapter 40, Part II, Article 13, Sections 5-40-1660, 5-40-1670 
(definitions of Agreement (removed), Cross recovery furnace (revised), 
Neutral sulfite semichemical pulping operation (added), New design 
recovery furnace (added), Pulp and paper mill (added), Semichemical 
pulping process (added), Straight kraft recovery furnace (revised), 
Total reduced sulfur (revised)), 5-40-1690, 5-40-1750, 5-40-1770B. and 
C., 5-40-1780D., and 5-40-1810. The State effective date is April 1, 
1999.

 [FR Doc. E7-20597 Filed 10-17-07; 8:45 am]

BILLING CODE 6560-50-P
