Approval and Promulgation of Air Quality Implementation Plans; Virginia; Revisions to the Open Burning Regulations, 13511-13514 [2011-5625]
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waters of the United States and
contiguous land areas within an area
starting at a point latitude 46°20′00″ N,
longitude 88°30′00″ W, proceeding west
to the Minnesota-North Dakota
boundary at latitude 46°20′00″ N,
longitude 96°36′30″ W; thence north
along the Minnesota-North Dakota
boundary to the intersection of the
Minnesota-North Dakota boundary and
the international boundary at latitude
49°00′02″ N, longitude 97°13′46″ W;
thence east along the international
boundary to a point at latitude 47°59′23″
N, longitude 87°35′10″ W; thence south
to a point near Manitou Island Light at
latitude 47°25′09″ N, longitude
87°35′10″ W; thence southwest to a
point near the shore of Lake Superior at
latitude 46°51′51″ N, longitude
87°45′00″ W; thence southwest to the
point of origin.
Dated: March 7, 2011.
Kathryn A. Sinniger,
Chief, Office of Regulations and
Administrative Law, United States Coast
Guard.
[FR Doc. 2011–5731 Filed 3–11–11; 8:45 am]
BILLING CODE 9110–04–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2010–0903; FRL–9278–7]
Approval and Promulgation of Air
Quality Implementation Plans; Virginia;
Revisions to the Open Burning
Regulations
Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
AGENCY:
EPA is taking direct final
action to approve revisions to the
Virginia State Implementation Plan
(SIP). The revisions recodify the open
burning regulations which are currently
in the Virginia SIP. There are no
substantive changes to the rule. EPA is
approving these revisions to Virginia’s
open burning regulations in accordance
with the requirements of the Clean Air
Act (CAA).
WReier-Aviles on DSKGBLS3C1PROD with RULES
SUMMARY:
This rule is effective on May 13,
2011 without further notice, unless EPA
receives adverse written comment by
April 13, 2011. If EPA receives such
comments, it will publish a timely
withdrawal of the direct final rule in the
Federal Register and inform the public
that the rule will not take effect.
ADDRESSES: Submit your comments,
identified by Docket ID Number EPA–
R03–OAR–2010–0903 by one of the
following methods:
A. https://www.regulations.gov. Follow
the on-line instructions for submitting
comments.
B. E-mail: frankford.harold@epa.gov.
C. Mail: EPA–R03–OAR–2010–0903,
Harold A. Frankford, Air Protection
Division, Mailcode 3AP00, U.S.
Environmental Protection Agency,
Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103.
D. Hand Delivery: At the previouslylisted EPA Region III address. Such
deliveries are only accepted during the
Docket’s normal hours of operation, and
special arrangements should be made
for deliveries of boxed information.
Instructions: Direct your comments to
Docket ID No. EPA–R03–OAR–2010–
0903. EPA’s policy is that all comments
received will be included in the public
docket without change, and may be
made available online at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through https://
www.regulations.gov or e-mail. The
https://www.regulations.gov Web site is
an ‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an e-mail comment directly
to EPA without going through https://
www.regulations.gov, your e-mail
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
DATES:
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses.
Docket: All documents in the
electronic docket are listed in the
https://www.regulations.gov index.
Although listed in the index, some
information is not publicly available,
i.e., 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 in https://
www.regulations.gov or in hard copy
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 submittals are
available at the Virginia Department of
Environmental Quality, 629 East Main
Street, Richmond, Virginia 23219.
FOR FURTHER INFORMATION CONTACT:
Harold A. Frankford, (215) 814–2108, or
by e-mail at frankford.harold@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
Throughout this document, whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA. On September 27, 2010, the
Commonwealth of Virginia submitted a
formal revision to its State
Implementation Plan (SIP). The SIP
revision consists of the recodification of
its open burning regulations.
II. Summary of SIP Revision
The recodification moves the
Commonwealth’s SIP-approved open
burning regulations from 9VAC5,
Chapter 140, Part II Article 40 to a new
9VAC5 Chapter 130, Part I. The
following table summarizes the current
and new Virginia Administrative Code
(VAC) citations for these regulations:
Current Virginia
SIP citation in
9VAC5 chapter
40, part II, article
40
Regulation title
Applicability ..................................................................................................................................................
Definitions ....................................................................................................................................................
Open Burning Prohibitions ...........................................................................................................................
Permissible Open Burning ...........................................................................................................................
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5–40–5600
5–40–5610
5–40–5620
5–40–5630
14MRR1
Revised Virginia
SIP citation in
9VAC5 chapter
130, part I
5–130–10
5–130–20
5–130–30
5–130–40
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Current Virginia
SIP citation in
9VAC5 chapter
40, part II, article
40
Regulation title
Forest Management and Agricultural Practices ..........................................................................................
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The changes in text to these
regulations are administrative in nature;
there are no substantive changes from
the current SIP-approved regulatory
text.
III. General Information Pertaining to
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 Section 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 Section 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
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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
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
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
CAA is likewise unaffected by this, or
any, state audit privilege or immunity
law.
IV. Final Action
EPA is approving the recodification of
Virginia’s SIP-approved open burning
regulations from 9VAC5 Chapter 40,
Part II, Article 40 to the open burning
PO 00000
Frm 00012
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5–40–5631
Revised Virginia
SIP citation in
9VAC5 chapter
130, part I
5–130–50
regulations cited in 9VAC5 Chapter 130.
EPA is publishing this rule without
prior proposal because the Agency
views this as a noncontroversial
amendment and anticipates no adverse
comment. However, in the ‘‘Proposed
Rules’’ section of today’s Federal
Register, EPA is publishing a separate
document that will serve as the proposal
to approve the SIP revision if adverse
comments are filed. This rule will be
effective on May 13, 2011 without
further notice unless EPA receives
adverse comment by April 13, 2011. If
EPA receives adverse comment, EPA
will publish a timely withdrawal in the
Federal Register informing the public
that the rule will not take effect. EPA
will address all public comments in a
subsequent final rule based on the
proposed rule. EPA will not institute a
second comment period on this action.
Any parties interested in commenting
must do so at this time. Please note that
if EPA receives adverse comment on an
amendment, paragraph, or section of
this rule and if that provision may be
severed from the remainder of the rule,
EPA may adopt as final those provisions
of the rule that are not the subject of an
adverse comment.
V. Statutory and Executive Order
Reviews
A. General Requirements
Under the CAA, 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 CAA. 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
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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 CAA; 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.
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 CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by May 13, 2011. 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. Parties with
objections to this direct final rule are
encouraged to file a comment in
response to the parallel notice of
proposed rulemaking for this action
published in the proposed rules section
of today’s Federal Register, rather than
file an immediate petition for judicial
review of this direct final rule, so that
EPA can withdraw this direct final rule
and address the comment in the
proposed rulemaking. This action to
recodify Virginia’s SIP-approved open
burning regulations 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, Ozone, Particulate matter,
Reporting and recordkeeping
requirements, Volatile organic
compounds.
Dated: March 1, 2011.
W.C. Early,
Acting Regional Administrator, Region III.
40 CFR part 52 is amended as follows:
PART 52—[AMENDED]
1. The authority for citation for 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 removing the category
for Article 40 and adding a category for
Chapter 130 after the existing entry for
5–91–800, to read as follows:
■
§ 52.2420
*
Identification of plan.
*
*
(c) * * *
*
*
EPA–APPROVED VIRGINIA REGULATIONS AND STATUTES
State citation
State effective
date
Title/subject
*
*
9VAC5, Chapter 130
*
Explanation [former SIP
citation]
EPA approval date
*
*
*
Regulations for Open Burning [Formerly 9VAC5 Chapter 40, Part II, Article 40]
Part I
General Provisions
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5–130–10 ..........
Applicability ...................................
3/18/09
3/14/11 [Insert page number
where the document begins].
5–130–20 ..........
Definitions .....................................
3/18/09
5–130–30 ..........
Open Burning Prohibitions ............
3/18/09
5–130–40 ..........
Permissible Open Burning ............
3/18/09
3/14/11
where
3/14/11
where
3/14/11
where
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*
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the document begins].
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Formerly 5–40–5600
Provisions of Article 40 are applicable only in the Northern Virginia and Richmond Emissions
Control Areas as defined in 9
VAC 5–20–206.
Formerly 5–40–5610.
Formerly 5–40–5620.
Formerly 5–40–5630.
14MRR1
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EPA–APPROVED VIRGINIA REGULATIONS AND STATUTES—Continued
State effective
date
State citation
Title/subject
5–130–50 ..........
Forest Management and Agricultural Practices.
*
*
*
*
*
*
*
[FR Doc. 2011–5625 Filed 3–11–11; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 63
[EPA–HQ–OAR–2008–0334; FRL–9279–8]
RIN 2060–AQ89
National Emission Standards for
Hazardous Air Pollutants for Chemical
Manufacturing Area Sources
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
EPA is issuing this final rule
to stay the requirement for certain
affected sources to comply with the title
V permit program during the pendency
of the reconsideration process. On June
15, 2010, EPA notified Petitioners that
the Agency intended to initiate the
reconsideration process in response to
their request for reconsideration of
certain provisions in the National
Emission Standards for Hazardous Air
Pollutants for Chemical Manufacturing
Area Sources. Among the provisions
EPA is reconsidering is a requirement
that certain affected sources obtain a
permit.
On December 14, 2010, EPA issued a
90-day stay of the requirement for
certain affected sources to comply with
the title V permit program. Because we
believed that the reconsideration
process would not be completed within
90 days, we concurrently proposed to
stay the provision requiring certain
sources to obtain a permit until the final
reconsideration rule is published in the
Federal Register. After considering the
comments received, EPA is
promulgating the stay of compliance
through this final rule.
DATES: This final rule is effective on
March 14, 2011.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–HQ–OAR–2008–0334. All
documents in the docket are listed on
the https://www.regulations.gov Web
site. Although listed in the index, some
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SUMMARY:
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3/18/09
*
3/14/11 [Insert page number
where the document begins].
*
*
information is not publicly available,
e.g., confidential business information
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 https://
www.regulations.gov, or in hard copy at
the EPA Docket Center, Public Reading
Room, EPA West, Room 3334, 1301
Constitution Ave., NW., Washington,
DC. The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal
holidays. The telephone number for the
Public Reading Room is (202) 566–1744,
and the telephone number for the Air
Docket is (202) 566–1742.
FOR FURTHER INFORMATION CONTACT: Mr.
Nick Parsons, Office of Air Quality
Planning and Standards, Sector Policies
and Programs Division, Refining and
Chemicals Group (E143–01),
Environmental Protection Agency,
Research Triangle Park, NC 27711;
telephone number: (919) 541–5372; fax
number: (919) 541–0246; e-mail address:
parsons.nick@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
The EPA published final National
Emission Standards for Hazardous Air
Pollutants for Chemical Manufacturing
Area Sources (CMAS) on October 29,
2009. 40 CFR part 63, subpart VVVVVV
(74 FR 56008). Included in the final rule
was a new provision that stated ‘‘[a]ny
source that was a major source and
installed a control device on a CMPU 1
after November 15, 1990, and, as a
result, became an area source under 40
CFR part 63 is required to obtain a
permit under 40 CFR part 70 or 40 CFR
part 71.’’ See 40 CFR 63.11494(e).
On February 12, 2010, the American
Chemistry Council and the Society of
Chemical Manufacturers and Affiliates
(collectively referred to as ‘‘Petitioners’’)
sought reconsideration of six provisions
in the final rule, including the provision
requiring certain sources to obtain a title
V permit. On June 15, 2010, EPA
1 Chemical
PO 00000
Manufacturing Process Unit.
Frm 00014
Fmt 4700
Explanation [former SIP
citation]
EPA approval date
Sfmt 4700
Formerly 5–40–5631.
*
*
notified Petitioners that the Agency
intended to initiate the reconsideration
process. EPA also separately notified
Petitioners that the provision requiring
certain sources to obtain a title V permit
was among the provisions for which
EPA would grant reconsideration.
By letter dated October 28, 2010,
Petitioners requested a stay of the
requirement to comply with the title V
permit program, specifically the
requirement to submit a title V permit
application, pending completion of the
reconsideration process. Petitioners
stated in their letter that they were
requesting the stay because EPA has yet
to initiate the reconsideration process,
and, ‘‘under one interpretation of EPA’s
[40 CFR part 70 and 40 CFR part 71]
regulations, existing sources must file
Title V permit applications [by] October
29, 2010.’’ Petitioners maintained that it
would be unreasonable and inequitable
to require facilities to prepare and
submit title V applications at the same
time that EPA is reconsidering the
requirement to obtain a title V permit.
On December 14, 2010, we issued a
90-day stay of the requirement for
certain sources to obtain a title V
permit, and we concurrently proposed
extending the stay beyond the 90-day
period until the reconsideration process
is completed (75 FR 77760 and 75 FR
77799). As explained in the proposal
notice, we proposed the stay because
facilities had no chance to comment on
this new requirement in the final rule,
and because we are reconsidering the
title V permitting requirement.
Furthermore, because we cannot prejudge the outcome of the
reconsideration process, we stated that
a limited stay during the duration of the
administrative reconsideration process
is appropriate so that sources are not
incurring the cost associated with
applying for a title V permit in advance
of our final decision on the issue.
II. What action is EPA taking?
We are issuing a stay of the provision
in 40 CFR 63.11494(e) that requires
‘‘[a]ny source that was a major source
and installed a control device on a
CMPU after November 15, 1990, and, as
a result, became an area source under
40 CFR part 63 is required to obtain a
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]]>Agencies
[Federal Register Volume 76, Number 49 (Monday, March 14, 2011)]
[Rules and Regulations]
[Pages 13511-13514]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-5625]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2010-0903; FRL-9278-7]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Revisions to the Open Burning Regulations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is taking direct final action to approve revisions to the
Virginia State Implementation Plan (SIP). The revisions recodify the
open burning regulations which are currently in the Virginia SIP. There
are no substantive changes to the rule. EPA is approving these
revisions to Virginia's open burning regulations in accordance with the
requirements of the Clean Air Act (CAA).
DATES: This rule is effective on May 13, 2011 without further notice,
unless EPA receives adverse written comment by April 13, 2011. If EPA
receives such comments, it will publish a timely withdrawal of the
direct final rule in the Federal Register and inform the public that
the rule will not take effect.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2010-0903 by one of the following methods:
A. https://www.regulations.gov. Follow the on-line instructions for
submitting comments.
B. E-mail: frankford.harold@epa.gov.
C. Mail: EPA-R03-OAR-2010-0903, Harold A. Frankford, Air Protection
Division, Mailcode 3AP00, U.S. Environmental Protection Agency, Region
III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
D. Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2010-0903. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at https://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through https://www.regulations.gov or e-mail. The https://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through https://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the electronic docket are listed in the
https://www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., 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 in https://www.regulations.gov or in hard copy 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 submittals are available at the Virginia Department of
Environmental Quality, 629 East Main Street, Richmond, Virginia 23219.
FOR FURTHER INFORMATION CONTACT: Harold A. Frankford, (215) 814-2108,
or by e-mail at frankford.harold@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
Throughout this document, whenever ``we,'' ``us,'' or ``our'' is
used, we mean EPA. On September 27, 2010, the Commonwealth of Virginia
submitted a formal revision to its State Implementation Plan (SIP). The
SIP revision consists of the recodification of its open burning
regulations.
II. Summary of SIP Revision
The recodification moves the Commonwealth's SIP-approved open
burning regulations from 9VAC5, Chapter 140, Part II Article 40 to a
new 9VAC5 Chapter 130, Part I. The following table summarizes the
current and new Virginia Administrative Code (VAC) citations for these
regulations:
------------------------------------------------------------------------
Current Virginia
SIP citation in Revised Virginia
Regulation title 9VAC5 chapter 40, SIP citation in
part II, article 9VAC5 chapter
40 130, part I
------------------------------------------------------------------------
Applicability..................... 5-40-5600 5-130-10
Definitions....................... 5-40-5610 5-130-20
Open Burning Prohibitions......... 5-40-5620 5-130-30
Permissible Open Burning.......... 5-40-5630 5-130-40
[[Page 13512]]
Forest Management and Agricultural 5-40-5631 5-130-50
Practices........................
------------------------------------------------------------------------
The changes in text to these regulations are administrative in
nature; there are no substantive changes from the current SIP-approved
regulatory text.
III. General Information Pertaining to 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 Section
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 Section 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 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 CAA is likewise unaffected by
this, or any, state audit privilege or immunity law.
IV. Final Action
EPA is approving the recodification of Virginia's SIP-approved open
burning regulations from 9VAC5 Chapter 40, Part II, Article 40 to the
open burning regulations cited in 9VAC5 Chapter 130. EPA is publishing
this rule without prior proposal because the Agency views this as a
noncontroversial amendment and anticipates no adverse comment. However,
in the ``Proposed Rules'' section of today's Federal Register, EPA is
publishing a separate document that will serve as the proposal to
approve the SIP revision if adverse comments are filed. This rule will
be effective on May 13, 2011 without further notice unless EPA receives
adverse comment by April 13, 2011. If EPA receives adverse comment, EPA
will publish a timely withdrawal in the Federal Register informing the
public that the rule will not take effect. EPA will address all public
comments in a subsequent final rule based on the proposed rule. EPA
will not institute a second comment period on this action. Any parties
interested in commenting must do so at this time. Please note that if
EPA receives adverse comment on an amendment, paragraph, or section of
this rule and if that provision may be severed from the remainder of
the rule, EPA may adopt as final those provisions of the rule that are
not the subject of an adverse comment.
V. Statutory and Executive Order Reviews
A. General Requirements
Under the CAA, 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 CAA. 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
[[Page 13513]]
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 CAA; 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.
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 CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by May 13, 2011. 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. Parties with objections to this direct final rule are
encouraged to file a comment in response to the parallel notice of
proposed rulemaking for this action published in the proposed rules
section of today's Federal Register, rather than file an immediate
petition for judicial review of this direct final rule, so that EPA can
withdraw this direct final rule and address the comment in the proposed
rulemaking. This action to recodify Virginia's SIP-approved open
burning regulations 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, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Volatile organic compounds.
Dated: March 1, 2011.
W.C. Early,
Acting Regional Administrator, Region III.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority for citation for 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 removing
the category for Article 40 and adding a category for Chapter 130 after
the existing entry for 5-91-800, to read as follows:
Sec. 52.2420 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Virginia Regulations and Statutes
----------------------------------------------------------------------------------------------------------------
State Explanation [former
State citation Title/subject effective date EPA approval date SIP citation]
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
9VAC5, Chapter 130 Regulations for Open Burning [Formerly 9VAC5 Chapter 40, Part II, Article 40]
----------------------------------------------------------------------------------------------------------------
Part I General Provisions
----------------------------------------------------------------------------------------------------------------
5-130-10................... Applicability........ 3/18/09 3/14/11 [Insert page Formerly 5-40-5600
number where the Provisions of Article
document begins]. 40 are applicable
only in the Northern
Virginia and
Richmond Emissions
Control Areas as
defined in 9 VAC 5-
20-206.
5-130-20................... Definitions.......... 3/18/09 3/14/11 [Insert page Formerly 5-40-5610.
number where the
document begins].
5-130-30................... Open Burning 3/18/09 3/14/11 [Insert page Formerly 5-40-5620.
Prohibitions. number where the
document begins].
5-130-40................... Permissible Open 3/18/09 3/14/11 [Insert page Formerly 5-40-5630.
Burning. number where the
document begins].
[[Page 13514]]
5-130-50................... Forest Management and 3/18/09 3/14/11 [Insert page Formerly 5-40-5631.
Agricultural number where the
Practices. document begins].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. 2011-5625 Filed 3-11-11; 8:45 am]
BILLING CODE 6560-50-P
