Approval and Promulgation of Air Quality Implementation Plans; Virginia; Revisions to Clean Air Interstate Rule Emissions Trading Program, 52275-52278 [2011-21267]
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Federal Register / Vol. 76, No. 162 / Monday, August 22, 2011 / Rules and Regulations
planned by another agency; (3)
materially alter the budgetary impact of
entitlements, grants, user fees, or loan
programs or the rights and obligations of
recipients thereof; or (4) raise novel
legal or policy issues arising out of legal
mandates, the President’s priorities, or
the principles set forth in the Executive
Order.
The economic, interagency,
budgetary, legal, and policy
implications of this final rule have been
examined and it has been determined
not to be a significant regulatory action
under Executive Order 12866.
Unfunded Mandates
The Unfunded Mandates Reform Act
of 1995 requires, at 2 U.S.C. 1532, that
agencies prepare an assessment of
anticipated costs and benefits before
issuing any rule that may result in
expenditure by State, local, or Tribal
governments, in the aggregate, or by the
private sector, of $100 million or more
(adjusted annually for inflation) in any
given year. This final rule would have
no such effect on State, local, or Tribal
governments, or on the private sector.
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Paperwork Reduction Act
This document contains no provisions
constituting a collection of information
under the Paperwork Reduction Act (44
U.S.C. 3501–3520).
Regulatory Flexibility Act
The initial and final regulatory
flexibility analyses requirements of
section 603 and 604 of the Regulatory
Flexibility Act, 5 U.S.C. 601–612, are
not applicable to this rule because a
notice of proposed rulemaking is not
required for this rule. Even so, the
Secretary of Veterans Affairs hereby
certifies that this final rule will not have
a significant economic impact on a
substantial number of small entities as
they are defined in the Regulatory
Flexibility Act. The State homes
referenced in this final rule are State
government entities under the control of
State governments. All State homes are
owned, operated and managed by State
governments except for a small number
that are operated by entities under
contract with State governments. These
contractors are not small entities.
Therefore, this final rule is also exempt,
pursuant to 5 U.S.C. 605(b), from the
initial and final regulatory flexibility
analysis requirements of sections 603
and 604.
Catalog of Federal Domestic Assistance
Numbers
The Catalog of Federal Domestic
Assistance numbers and titles are
64.005, Grants to States for Construction
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of State Home Facilities; 64.009,
Veterans Medical Care Benefits; 64.010,
Veterans Nursing Home Care; 64.015,
Veterans State Nursing Home Care;
64.018, Sharing Specialized Medical
Resources; 64.019.
ENVIRONMENTAL PROTECTION
AGENCY
Signing Authority
Approval and Promulgation of Air
Quality Implementation Plans; Virginia;
Revisions to Clean Air Interstate Rule
Emissions Trading Program
The Secretary of Veterans Affairs, or
designee, approved this document and
authorized the undersigned to sign and
submit the document to the Office of the
Federal Register for publication
electronically as an official document of
the Department of Veterans Affairs. John
R. Gingrich, Chief of Staff, Department
of Veterans Affairs, approved this
document on July 7, 2011, for
publication.
List of Subjects in 38 CFR Part 51
Administrative practice and
procedure, Claims, Government
contracts, Grant programs-health, Grant
programs-veterans, Health care, Health
facilities, Health professions, Health
records, Mental health programs,
Nursing homes, Reporting and
recordkeeping requirements, Travel and
transportation expenses, Veterans.
Dated: August 16, 2011.
Robert C. McFetridge,
Director of Regulation Policy and
Management, Office of the General Counsel,
Department of Veterans Affairs.
For the reasons stated in the
preamble, VA amends 38 CFR part 51 as
follows:
PART 51—PER DIEM FOR NURSING
HOME CARE OF VETERANS IN STATE
HOMES
1. The authority citation for part 51
continues to read as follows:
■
Authority: 38 U.S.C. 101, 501, 1710, 1741–
1743, 1745.
2. Amend § 51.210 by:
■ a. In paragraph (d), removing ‘‘or
parents all of whose children died while
serving in the armed forces’’ and
adding, in its place, ‘‘, or parents any of
whose children died while serving in
the Armed Forces’’.
■ b. Revising the authority citation at
the end of the section.
The revision reads as follows:
■
§ 51.210
*
*
Administration.
*
*
*
(Authority: 38 U.S.C. 101, 501, 1710, 1741–
1743, 8135; Pub. L. 111–246)
[FR Doc. 2011–21292 Filed 8–19–11; 8:45 am]
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40 CFR Part 52
[EPA–R03–OAR–2011–0195; FRL–9453–6]
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
EPA is approving a State
Implementation Plan (SIP) revision
submitted by the Commonwealth of
Virginia. The revision, which amends
the Virginia Clean Air Interstate Rule
(CAIR) trading program, is comprised of
technical corrections and revisions to
the definition of a cogeneration unit to
ensure the Commonwealth’s CAIR
trading program is consistent with
federal CAIR requirements. This action
is being taken under the Clean Air Act
(CAA).
DATES: Effective Date: This final rule is
effective on September 21, 2011.
ADDRESSES: EPA has established a
docket for this action under Docket ID
Number EPA–R03–OAR–2011–0195. All
documents in the docket are listed in
the https://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
https://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:
Throughout this document, whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA. On September 27, 2010, the
Commonwealth of Virginia Department
of Environmental Quality (VADEQ)
submitted a revision to its SIP,
including technical corrections and
revisions to the definition of a
SUMMARY:
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cogeneration unit to ensure the
Commonwealth’s CAIR trading program
is consistent with Federal CAIR
requirements.
I. Background
EPA approved Virginia’s CAIR trading
program on December 28, 2007 (72 FR
73602). In the notice of proposed
rulemaking (NPR) for Virginia’s CAIR
trading program (72 FR 54385,
September 25, 2007), EPA noted that it
believed that Virginia clearly intended
to replace the CAIR Federal
Implementation Plan (FIP) with a State
plan based on the CAIR model rule that
would allow subject sources to
participate in the EPA-administered
regional CAIR trading program.
However, EPA also noted that there
were some provisions of Virginia CAIR
regulations 9 VAC 5 Chapter 140, Parts
II, III, and IV that could be interpreted
in a way that might be inconsistent with
the Commonwealth’s intent. EPA
determined that VADEQ’s
interpretations of these provisions,
provided in its letter dated September
12, 2007, clarified the language of the
Virginia regulations and were consistent
with having the EPA-administered CAIR
trading program become effective in
Virginia. However EPA recommended,
and VADEQ agreed to, promulgation of
clarifying amendments to these
provisions at the Commonwealth of
Virginia’s earliest opportunity.
Also, in a rulemaking dated October
19, 2007 (72 FR 59190), EPA changed
the definition of ‘‘cogeneration unit’’ in
CAIR, the CAIR model cap and trade
rule, and the CAIR FIP with respect to
the calculation methodology for the
efficiency standard of a cogeneration
unit, therefore Virginia was required to
modify its CAIR SIP to be consistent
with the revised Federal definition.
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II. Summary of SIP Revision
On September 27, 2010, VADEQ
submitted a SIP revision that amended
Virginia’s CAIR regulations. The SIP
revision incorporates the clarifying
revisions specified in the September 25,
2007 NPR proposing approval of
Virginia’s CAIR regulations and the
changes to the definition of
‘‘cogeneration unit’’ made in EPA’s
revised CAIR rulemaking dated October
19, 2007. On May 26, 2011 (76 FR
30600), the NPR was published for
public comment. Other specific
requirements 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.
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III. 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
Arequired 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
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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 Virginia CAIR
revisions submitted on September 27,
2010 as a revision to the Virginia SIP.
The revisions are consistent with CAIR
requirements.
A. General Requirements
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA 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
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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 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.
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 October 21, 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. This action
approving revisions to Virginia’s CAIR
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, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and
recordkeeping requirements, Sulfur
oxides.
Dated: August 3, 2011.
W. C. Early,
Acting 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
(c) is amended by revising the entries
for Chapter 140, Sections 5–140–1010,
5–140–1020, 5–140–1060, 5–140–2010,
5–140–2020, 5–140–3010, and 5–140–
3020 to read as follows:
■
§ 52.2420
*
Identification of plan.
*
*
(c) * * *
*
*
EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES
State citation
State
effective
date
Title/subject
*
*
*
*
9 VAC 5, Chapter 140
*
*
Part II
Article 1
*
*
Regulation for Emissions Trading
5–140–1020 .......................
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3/18/09
Definitions ..........................
3/18/09
*
5–140–1060 .......................
*
*
Standard Requirements ....
3/18/09
5–140–2010 .......................
VerDate Mar<15>2010
*
*
*
CAIR NOX Annual Trading Program General Provisions
Purpose and Authority ......
*
*
*
*
NOX Annual Trading Program
5–140–1010 .......................
*
Explanation
[former SIP
citation]
EPA approval date
*
Part III
8/22/11 [Insert page number where the document begins]
8/22/11 [Insert page number where the document begins]
*
*
*
8/22/11 [Insert page number where the document begins]
*
*
NOX Ozone Season Trading Program
*
Article 1 CAIR NOX Ozone Season Trading Program General Provisions.
Purpose and Authority ......
3/18/09 8/22/11 [Insert page number where the document begins]
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*
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Federal Register / Vol. 76, No. 162 / Monday, August 22, 2011 / Rules and Regulations
EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES—Continued
State
effective
date
State citation
Title/subject
5–140–2020 .......................
Definitions ..........................
*
*
*
Part IV
5–140–3010 .......................
5–140–3020 .......................
*
*
*
*
EVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[MD203–3119; FRL–9454–1]
Approval and Promulgation of Air
Quality Implementation Plans;
Maryland; Update to Materials
Incorporated by Reference
*
Harold A. Frankford, (215) 814–2108 or
by e-mail at frankford.harold@epa.gov.
SUPPLEMENTARY INFORMATION:
Environmental Protection
Agency (EPA).
ACTION: Final rule; administrative
change.
I. Background
EPA is updating the materials
submitted by Maryland that are
incorporated by reference (IBR) into the
Maryland State Implementation Plan
(SIP). The regulations affected by this
update have been previously submitted
by the Maryland Department of the
Environment (MDE) and approved by
EPA. This update affects the SIP
materials that are available for public
inspection at the National Archives and
Records Administration (NARA), the
Air and Radiation Docket and
Information Center located at EPA
Headquarters in Washington, DC, and
the EPA Regional Office.
DATES: Effective Date: This action is
effective August 22, 2011.
ADDRESSES: SIP materials which are
incorporated by reference into 40 CFR
part 52 are available for inspection at
the following locations: Air Protection
Division, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103; the
Air and Radiation Docket and
Information Center, U.S. Environmental
Protection Agency, 1301 Constitution
17:10 Aug 19, 2011
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*
FOR FURTHER INFORMATION CONTACT:
AGENCY:
SUMMARY:
*
Avenue, N.W., Room Number 3334,
EPA West Building, Washington, DC
20460; or the National Archives and
Records Administration (NARA). For
information on the availability of this
material at NARA, call 202–741–6030,
or go to: https://www.archives.gov/
federal_register/
code_of_federal_regulations/
ibr_locations.html.
*
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8/22/11 [Insert page number where the document begins]
*
*
SO2 Annual Trading Program
*
[FR Doc. 2011–21267 Filed 8–19–11; 8:45 am]
VerDate Mar<15>2010
3/18/09
*
Article 1 CAIR SO2 Trading Program General Provisions
Purpose and Authority ......
3/18/09 8/22/11 [Insert page number where the document begins]
Definitions ..........................
3/18/09 8/22/11 [Insert page number where the document begins]
*
*
Explanation
[former SIP
citation]
EPA approval date
The SIP is a living document which
the State revises as necessary to address
its unique air pollution problems.
Therefore, EPA, from time to time, must
take action on SIP revisions containing
new and/or revised regulations as being
part of the SIP. On May 22, 1997 (62 FR
27968), EPA revised the procedures for
incorporating by reference Federallyapproved SIPs, as a result of
consultations between EPA and the
Office of the Federal Register (OFR). The
description of the revised SIP
document, IBR procedures and
‘‘Identification of plan’’ format are
discussed in further detail in the May
22, 1997 Federal Register document. On
November 1, 2004 (69 FR 69304), EPA
published a document in the Federal
Register beginning the new IBR
procedure for Maryland. On February 2,
2006 (71 FR 5607), May 18, 2007 (72 FR
27957), March 11, 2008 (73 FR 12895),
and March 19, 2009 (74 FR 11647), EPA
published updates to the IBR material
for Maryland.
Since the publication of the last IBR
update, EPA has approved the following
regulatory changes to the following
Maryland regulations:
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*
*
A. Added Regulations
1. COMAR 26.11.10 (Control of Iron
and Steel Production Installations),
regulation .05—1 (Control of Carbon
Monoxide Emissions from Basic Oxygen
Furnaces).
2. COMAR 26.11.19 (Volatile Organic
Compounds from Specific Processes),
regulations .09–1 (Control of VOC
Emissions from Industrial Solvent
Cleaning Operations Other Than Cold
and Vapor Degreasing), .10–1 (Flexible
Packaging Printing), and .33 (Control of
Volatile Organic Compounds (VOCs)
from Flat wood Paneling Coatings).
3. COMAR 26.11.28 (Clean Air
Interstate Rule)—all regulations (.01
through .08).
B. Revised Regulations
1. COMAR 26.11.01.01 (General
Administrative Provisions—
Definitions), section .01B(17) (definition
of ‘‘fuel burning equipment’’).
2. COMAR 26.11.09 (Control of Fuel
Burning Equipment, Stationary Internal
Combustion Engines, and Certain FuelBurning Installations), regulation .01B
(removal of the definition of ‘‘fuel
burning equipment’’).
3. COMAR 26.11.19 (Volatile Organic
Compounds from Specific Processes),
regulations .06 (Large Appliance
Coating), .07 (Paper, Fabric, Film, Foil,
Vinyl, and Other Plastic Parts Coating),
and .10 (Flexographic and Rotogravure
Printing).
C. Removed Regulations
COMAR 26.11.10 (Control of Iron and
Steel Production Installations),
Regulation .06[2] (Carbon Monoxide).
II. EPA Action
In this action, EPA is doing the
following:
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[Federal Register Volume 76, Number 162 (Monday, August 22, 2011)]
[Rules and Regulations]
[Pages 52275-52278]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-21267]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2011-0195; FRL-9453-6]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Revisions to Clean Air Interstate Rule Emissions 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, which amends
the Virginia Clean Air Interstate Rule (CAIR) trading program, is
comprised of technical corrections and revisions to the definition of a
cogeneration unit to ensure the Commonwealth's CAIR trading program is
consistent with federal CAIR requirements. This action is being taken
under the Clean Air Act (CAA).
DATES: Effective Date: This final rule is effective on September 21,
2011.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2011-0195. All documents in the docket are listed in
the https://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 https://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: Throughout this document, whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. On September 27, 2010, the
Commonwealth of Virginia Department of Environmental Quality (VADEQ)
submitted a revision to its SIP, including technical corrections and
revisions to the definition of a
[[Page 52276]]
cogeneration unit to ensure the Commonwealth's CAIR trading program is
consistent with Federal CAIR requirements.
I. Background
EPA approved Virginia's CAIR trading program on December 28, 2007
(72 FR 73602). In the notice of proposed rulemaking (NPR) for
Virginia's CAIR trading program (72 FR 54385, September 25, 2007), EPA
noted that it believed that Virginia clearly intended to replace the
CAIR Federal Implementation Plan (FIP) with a State plan based on the
CAIR model rule that would allow subject sources to participate in the
EPA-administered regional CAIR trading program. However, EPA also noted
that there were some provisions of Virginia CAIR regulations 9 VAC 5
Chapter 140, Parts II, III, and IV that could be interpreted in a way
that might be inconsistent with the Commonwealth's intent. EPA
determined that VADEQ's interpretations of these provisions, provided
in its letter dated September 12, 2007, clarified the language of the
Virginia regulations and were consistent with having the EPA-
administered CAIR trading program become effective in Virginia. However
EPA recommended, and VADEQ agreed to, promulgation of clarifying
amendments to these provisions at the Commonwealth of Virginia's
earliest opportunity.
Also, in a rulemaking dated October 19, 2007 (72 FR 59190), EPA
changed the definition of ``cogeneration unit'' in CAIR, the CAIR model
cap and trade rule, and the CAIR FIP with respect to the calculation
methodology for the efficiency standard of a cogeneration unit,
therefore Virginia was required to modify its CAIR SIP to be consistent
with the revised Federal definition.
II. Summary of SIP Revision
On September 27, 2010, VADEQ submitted a SIP revision that amended
Virginia's CAIR regulations. The SIP revision incorporates the
clarifying revisions specified in the September 25, 2007 NPR proposing
approval of Virginia's CAIR regulations and the changes to the
definition of ``cogeneration unit'' made in EPA's revised CAIR
rulemaking dated October 19, 2007. On May 26, 2011 (76 FR 30600), the
NPR was published for public comment. Other specific requirements 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.
III. 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 Arequired 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 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 CAA is likewise unaffected by
this, or any, state audit privilege or immunity law.
IV. Final Action
EPA is approving the Virginia CAIR revisions submitted on September
27, 2010 as a revision to the Virginia SIP. The revisions are
consistent with CAIR requirements.
A. General Requirements
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA 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
[[Page 52277]]
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 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.
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 October 21, 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. This action approving revisions to Virginia's CAIR 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, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides.
Dated: August 3, 2011.
W. C. Early,
Acting Regional Administrator, Region III.
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 revising
the entries for Chapter 140, Sections 5-140-1010, 5-140-1020, 5-140-
1060, 5-140-2010, 5-140-2020, 5-140-3010, and 5-140-3020 to read as
follows:
Sec. 52.2420 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Virginia Regulations and Statutes
----------------------------------------------------------------------------------------------------------------
State Explanation
State citation Title/subject effective EPA approval date [former SIP
date citation]
----------------------------------------------------------------------------------------------------------------
* * * * * * *
9 VAC 5, Chapter 140 Regulation for Emissions Trading
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Part II NOX Annual Trading Program
----------------------------------------------------------------------------------------------------------------
Article 1 CAIR NOX Annual Trading Program General Provisions
----------------------------------------------------------------------------------------------------------------
5-140-1010................... Purpose and 3/18/09 8/22/11 [Insert page number where ................
Authority. the document begins]
5-140-1020................... Definitions.... 3/18/09 8/22/11 [Insert page number where ................
the document begins]
* * * * * * *
5-140-1060................... Standard 3/18/09 8/22/11 [Insert page number where ................
Requirements. the document begins]
* * * * * * *
Part III NOX Ozone Season Trading Program
----------------------------------------------------------------------------------------------------------------
Article 1 CAIR NOX Ozone Season Trading Program General Provisions.
5-140-2010................... Purpose and 3/18/09 8/22/11 [Insert page number where ................
Authority. the document begins]
[[Page 52278]]
5-140-2020................... Definitions.... 3/18/09 8/22/11 [Insert page number where ................
the document begins]
* * * * * * *
Part IV SO2 Annual Trading Program
----------------------------------------------------------------------------------------------------------------
Article 1 CAIR SO2 Trading Program General Provisions
5-140-3010................... Purpose and 3/18/09 8/22/11 [Insert page number where
Authority. the document begins]
5-140-3020................... Definitions.... 3/18/09 8/22/11 [Insert page number where
the document begins]
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. 2011-21267 Filed 8-19-11; 8:45 am]
BILLING CODE 6560-50-P
