
[Federal Register: March 12, 2010 (Volume 75, Number 48)]
[Rules and Regulations]               
[Page 11738-11740]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12mr10-4]                         


[[Page 11738]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2009-0599; FRL-9125-2]

 
Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Revision to Clean Air Interstate Rule Sulfur Dioxide Trading 
Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the Commonwealth of Virginia. The revision pertains to the 
timing for the first phase of the sulfur dioxide (SO2) 
trading budget under the Commonwealth's approved regulations that 
implement the requirements of the Clean Air Interstate Rule (CAIR). EPA 
is approving this revision to change the start date of Virginia's CAIR 
SO2 trading budget from the control period in 2009 to the 
control period in 2010 in accordance with the requirements of the Clean 
Air Act (CAA).

DATES: Effective Date: This final rule is effective on April 12, 2010.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR--2009-0599. 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: Marilyn Powers, (215) 814-2308, or by 
e-mail at powers.marilyn@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    Throughout this document, whenever ``we,'' ``us,'' or ``our'' is 
used, we mean EPA.
    On January 14, 2009, the Commonwealth of Virginia submitted a 
formal revision to its SIP. The SIP revision consists of a change in 
timing for the first phase of the Commonwealth's approved CAIR 
SO2 trading budget. The start for the first phase of the 
SO2 trading budget is changed from the control period in 
2009 to the control period in 2010.
    On October 22, 2009 (74 FR 54485), EPA published a Direct Final 
Rule (DFRN) to approve the January 14, 2009 SIP revision submitted by 
the Commonwealth of Virginia. On October 26, 2009, EPA received a 
comment, and on November 23, 2009 (74 FR 61037), EPA withdrew the DFRN 
and noted that the comment would be addressed in a final action based 
on the Notice of Proposed Rulemaking (NPR) published on October 22, 
2009 (74 FR 54534). The comment period closed on November 23, 2009. No 
additional comments were received.
    Comment: An anonymous commenter submitted the comment: ``I am not 
sure about this rule.''
    Response: The comment, while vaguely expressing a general 
uncertainty about the rule, does not identify any particular defect in 
the rule substance or adoption. Importantly, the comment does not 
oppose EPA's proposed full approval of the rule. EPA therefore believes 
that no additional response is necessary.

II. Summary of SIP Revision

    Virginia regulation 9 VAC 5-140-3400 originally required that the 
Commonwealth's CAIR SO2 budget applied starting with the 
control period in 2009. However, the EPA-administered CAIR 
SO2 trading programs under States' CAIR SIPs and under the 
CAIR FIP start on January 1, 2010, and the associated CAIR 
SO2 trading budgets apply starting with the 2010 control 
period. To make the Virginia CAIR SO2 trading program 
requirements consistent with the regional trading program requirements, 
Virginia revised regulation 9 VAC-5-140-3400 to change this date from 
2009 to 2010. In the SIP revision, Virginia explains that this change 
corrects a technical error in its approved CAIR SIP. The SIP revision 
also includes a clarifying revision to the description of the State's 
SO2 budget.

III. General Information Pertaining to SIP Submittals from the 
Commonwealth of Virgina

    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 Section 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

[[Page 11739]]

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.

IV. Final Action

    EPA is approving the SIP revision submitted by the Commonwealth of 
Virginia on January 14, 2009. The SIP revision incorporates a timing 
change to the Commonwealth's CAIR SO2 trading program that 
make it consistent with the regional CAIR SO2 trading 
program, under which SO2 trading budgets apply starting in 
2010, as well as a clarifying revision to the description of the 
State's SO2 budget.

V. 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 (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 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. 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 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 May 11, 2010. 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 approve a revision to Virginia's CAIR SO2 
Trading Program 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, Sulfur oxides.

    Dated: February 18, 2010.
W.C. Early,
Acting Regional Administrator, EPA Region III.

0
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 adding a 
heading to the table, revising the heading for 9 VAC 5, Chapter 140, 
and the entry 5-140-3400 to read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

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                                 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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                        29 VAC 5, Chapter 140 Regulations for Emissions Trading Programs
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Part IV SO2 Annual Trading Program

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5-140-3400.......................  State trading              12/12/07  03/12/10 [Insert     1. In section
                                    budgets.                             page number where    title, replace
                                                                         the document         ``State'' with
                                                                         begins].             ``CAIR SO2
                                                                                              Annual''.
                                                        ..............                       2. In paragraph 1,
                                                                                              replace 2009 with
                                                                                              2010.

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[FR Doc. 2010-5105 Filed 3-11-10; 8:45 am]
BILLING CODE 6560-50-P

