	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

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

	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.

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).

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--2009-0599.  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	

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
545344).  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 ( 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.

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 (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.  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 [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 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.

                                                                        
          W. C. Early, Acting

                                                                        
           Regional Administrator

___February 18, 2010___                                         
___________________________    

Dated:                            				Shawn M. Garvin, 

							Regional Administrator,

							EPA 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 (c) is amended by revising the
entry for Chapter 140, Section 5-140-3400 to read as follows:

( 52.2420  	Identification of plan.

*	*	*	*	*	

 (c) * * * 

	EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES

State citation     	Title/subject	State effective date	EPA approval date
Explanation [former SIP citation]



*     *     *     *     *    *     *

9 VAC 5, Chapter 140	Regulations for Emissions Trading Programs

*     *     *     *     *    *     *

Part IV	SO2 Annual Trading Program

*     *     *     *     *    *     *

5-140-3400	State trading budgets	12/12/07	[Insert Federal Register
publication date] [Insert page number where the document begins]	1.  In
section title, replace “State” with “CAIR SO2 Annual” 

2.  In paragraph 1, replace 2009 with 2010.

*     *     *     *     *    *     *



*    *     *     *      *

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