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

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

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.

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

SO2trading 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:

1. 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

   SO2trading budget. The start for the first phase of the

   SO2trading 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.

2. Summary of SIP Revision

   Virginia regulation 9 VAC 5-140-3400 originally required that the

   Commonwealth's CAIR SO2budget applied starting with the control period in 2009. However, the EPA-administered CAIR

   SO2trading programs under States' CAIR SIPs and under the

   CAIR FIP start on January 1, 2010, and the associated CAIR

   SO2trading budgets apply starting with the 2010 control period. To make the Virginia CAIR SO2trading 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

   SO2budget.

3. 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.

4. 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 SO2trading program that make it consistent with the regional CAIR SO2trading program, under which SO2trading budgets apply starting in 2010, as well as a clarifying revision to the description of the

   State's SO2budget.

5. Statutory and Executive Order Reviews

   1. 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.

   2. 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).

   3. 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) * * *

      Page 11740

      EPA-Approved Virginia Regulations and Statutes

      State

      Explanation [former

      State citation

      Title/subject

      effective date EPA approval date

      SIP citation]

      * * * * * * *

      29 VAC 5, Chapter 140 Regulations for Emissions Trading Programs

      * * * * * * *

      Part IV SO2 Annual Trading Program

      * * * * * * *

      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.

         * * * * * * *

         * * * * *

         FR Doc. 2010-5105 Filed 3-11-10; 8:45 am

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