	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

EPA-R03-OAR-2007-0382, EPA-R03-OAR-2008-0113; [FRL-        ] 

Approval and Promulgation of Air Quality Implementation Plans; Virginia;
Emission Reductions from Large Stationary Internal Combustion Engines
and Large Cement Kilns 

AGENCY:	Environmental Protection Agency (EPA).

ACTION:	Final rule.

SUMMARY:  EPA is approving State Implementation Plan (SIP) revisions
submitted by the Virginia Department of Environmental Quality (VADEQ). 
These revisions require nitrogen oxides (NOx) emission reductions from
four large stationary internal combustion (IC) engines and a large
cement kiln located in the Commonwealth of Virginia.  The intended
effect of this action is to approve permitted emission limits that
enable Virginia to meet its remaining NOx reduction obligations under
the NOx SIP Call.

EFFECTIVE DATE:  This final rule is effective on [insert date 30 days
from date of publication].

ADDRESSES:  EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2007-0382.  All documents in the docket are listed in
the www.regulations.gov website.   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 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:  Marilyn Powers, (215) 814- 2308, or by
e-mail at powers.marilyn@epa.gov.  

SUPPLEMENTARY INFORMATION:  

I.	Background	

On August 21, 2008 (73 FR 49373), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Virginia.  The NPR proposed
approval of NOx emission reductions from four large stationary IC
engines and a large cement kiln located in the Commonwealth.  The formal
SIP revisions were submitted by VADEQ on February 26, 2007, March 5,
2007, March 12, 2007, March 19, 2007, and August 8, 2007.  The SIP
revision for each source consists of State operating permits that
contain emission limits to ensure the Commonwealth meets its NOx budget
for these sectors as required under the NOx SIP Call.  Other specific
requirements of the State operating permits and the rationale 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 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 State operating permits for four Transcontinental Gas
Pipeline Stations (Stations 165, 170, 175, and 180) and a State
operating permit for Roanoke Cement Corporation as a revision to the
Virginia SIP.  The NOx emission reductions required by the permits
address Virginia’s remaining emission reduction obligations under the
NOx SIP Call.  

IV.   Statutory and Executive Order Reviews

A.   General Requirements 

Under the Clean Air Act, 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 Clean Air Act.  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 (Public Law 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
Clean Air Act; 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.  Section 804, however, exempts from section 801 the following
types of rules: rules of particular applicability; rules relating to
agency management or personnel; and rules of agency organization,
procedure, or practice that do not substantially affect the rights or
obligations of non-agency parties.  5 U.S.C. 804(3).  Because this is a
rule of particular applicability, EPA is not required to submit a rule
report regarding this action under section 801.

C.  Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for judicial
review of this action must be filed in the United States Court of
Appeals for the appropriate circuit by [Insert date 60 days from date of
publication of this document in the Federal Register].  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, pertaining to EPA approval of NOx emission
reductions from large stationary IC engines and large cement kilns in
Virginia, may not be challenged later in proceedings to enforce its
requirements.  (See section 307(b)(2).)

List of Subjects in 40 CFR part 52  

Air pollution control, Environmental protection, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements.

___October 20, 2008_____	  			___________/s/____________________

Dated:                            				Donald S. Welsh,                  
              								Regional Administrator,

                                  					Region III.

40 CFR Part 52 is amended as follows: 

PART 52 - [AMENDED] 

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

2. In ( 52.2420, the table in paragraph (d) is amended by adding the
entry for Transcontinental Pipeline Station 165, Transcontinental
Pipeline Station 170, Transcontinental Pipeline Station 175,
Transcontinental Pipeline Station 180 and Roanoke Cement Corporation at
the end of the table to read as follows:

( 52.2420  	Identification of plan.

*   *  *   *  *	

 (d) * * * 

	EPA-APPROVED SOURCE-SPECIFIC REQUIREMENTS

Source Name	

Permit/order or registration number	

State effective date	

EPA approval date	

40 CFR part 52 citation



*     *     *     *     *    *     *

Transcontinental Pipeline Station 165	Registration No. 30864	1/24/07
[Insert Federal Register publication date] [Insert page number where the
document begins]

	Transcontinental Pipeline Station 170	Registration No. 30863	1/24/07
[Insert Federal Register publication date] [Insert page number where the
document begins]

	Transcontinental Pipeline Station 175	Registration No. 40789	1/30/07
[Insert Federal Register publication date] [Insert page number where the
document begins]

	Transcontinental Pipeline Station 180	Registration No. 40782	2/13/07
[Insert Federal Register publication date] [Insert page number where the
document begins]

	Roanoke Cement Corporation	Registration No. 20232	6/18/07	[Insert
Federal Register publication date] [Insert page number where the
document begins]

	

*    *     *     *      *

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