Approval and Promulgation of Air Quality Implementation Plans; Virginia; Removal of Transcontinental Gas Pipe Line Corporation Permit From State Implementation Plan, 24843-24845 [2012-9973]
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Federal Register / Vol. 77, No. 81 / Thursday, April 26, 2012 / Rules and Regulations
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§ 165.T08–0190 Safety Zone; Bayou
Casotte; Pascagoula, MS.
Virginia State Implementation Plan
(SIP). The revision pertains to a
(a) Location. The following area is a
Transcontinental Gas Pipe Line
temporary safety zone: a portion of
Corporation (Transco) operating permit
Bayou Casotte, to include all waters
that EPA approved into the Virginia SIP
between a southern boundary
to meet nitrogen oxides (NOX) reduction
represented by positions, 30°20′42.3″ N, requirements for large stationary
088°30′26.0″ W and 30°20′42.3″ N,
internal combustion engines under the
088°30′33.0″ W and a northern
NOX SIP Call. Transco Station 175 has
boundary represented by positions,
permanently shut down, and this
30°21′06.85″ N, 088°30′29.36″ W and
revision removes the permit from the
30°21′09.15″ N, 088°30′24.56″ W.
Virginia SIP. EPA is approving this
(b) Enforcement. This rule will be
revision in accordance with the
effective from 12:01 a.m. April 22, 2012 requirements of the Clean Air Act
through 11:59 p.m. April 30, 2012. Exact (CAA).
enforcement date and times will be
DATES: This rule is effective on June 25,
broadcasted via a Safety Broadcast
2012 without further notice, unless EPA
Notice to Mariners.
receives adverse written comment by
(c) Regulations. (1) In accordance with May 29, 2012. If EPA receives such
the general regulations in § 165.23 of
comments, it will publish a timely
this part, entry into this zone is
withdrawal of the direct final rule in the
prohibited unless authorized by the
Federal Register and inform the public
Captain of the Port Mobile or a
that the rule will not take effect.
designated representative.
ADDRESSES: Submit your comments,
(2) Persons or vessels desiring to enter
identified by Docket ID Number EPA–
into or passage through the zone must
R03–OAR–2012–0024 by one of the
request permission from the Captain of
following methods:
the Port Mobile or a designated
A. www.regulations.gov. Follow the
representative. They may be contacted
on-line instructions for submitting
on VHF–FM channels 16 or by
comments.
telephone at 251–441–5976.
B. Email: fernandez.cristina@epa.gov.
(3) If permission is granted, all
C. Mail: EPA–R03–OAR–2012–0024,
persons and vessels shall comply with
Cristina Fernandez, Associate Director,
the instructions of the Captain of the
Office of Air Quality Planning, Mailcode
Port or designated representative.
3AP30, U.S. Environmental Protection
(d) Informational broadcasts. The
Agency, Region III, 1650 Arch Street,
Captain of the Port or a designated
Philadelphia, Pennsylvania 19103.
representative will inform the public
D. Hand Delivery: At the previouslythrough broadcast notices to mariners of listed EPA Region III address. Such
the enforcement period for the safety
deliveries are only accepted during the
zone as well as any changes in the
Docket’s normal hours of operation, and
planned schedule.
special arrangements should be made
Dated: April 4, 2012.
for deliveries of boxed information.
Instructions: Direct your comments to
D.J. Rose,
Docket ID No. EPA–R03–OAR–2012–
Captain, U.S. Coast Guard, Captain of the
0024. EPA’s policy is that all comments
Port Mobile.
received will be included in the public
[FR Doc. 2012–10215 Filed 4–24–12; 4:15 pm]
docket without change, and may be
BILLING CODE 9110–04–P
made available online at
www.regulations.gov, including any
personal information provided, unless
ENVIRONMENTAL PROTECTION
the comment includes information
AGENCY
claimed to be Confidential Business
Information (CBI) or other information
40 CFR Part 52
whose disclosure is restricted by statute.
[EPA–R03–OAR–2012–0024; FRL–9664–4]
Do not submit information that you
consider to be CBI or otherwise
Approval and Promulgation of Air
protected through www.regulations.gov
Quality Implementation Plans; Virginia;
or email. The www.regulations.gov Web
Removal of Transcontinental Gas Pipe
site is an ‘‘anonymous access’’ system,
Line Corporation Permit From State
which means EPA will not know your
Implementation Plan
identity or contact information unless
you provide it in the body of your
AGENCY: Environmental Protection
comment. If you send an email
Agency (EPA).
comment directly to EPA without going
ACTION: Direct final rule.
through www.regulations.gov, your
email address will be automatically
SUMMARY: EPA is taking direct final
captured and included as part of the
action to approve a revision to the
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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
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 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 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
email at powers.marilyn@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA.
I. Background
EPA issued the NOX SIP Call (63 FR
57356, October 27, 1998) to require 22
eastern states and the District of
Columbia to reduce specified amounts
of one of the main precursors of groundlevel ozone, NOX, in order to reduce
interstate ozone transport. EPA found
that the sources in these states emit NOX
in amounts that contribute significantly
to nonattainment of the 1-hour ozone
national ambient air quality standard
(NAAQS) in downwind states. In the
NOX SIP Call, the amount of reductions
required by states were calculated based
on application of available, highly costeffective controls on certain source
categories of NOX. These source
categories included large fossil fuelfired electric generating units (EGUs)
serving a generator with a capacity
greater than 25 megawatts (MWe), fossil
fuel-fired non-EGUs (such as large
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Federal Register / Vol. 77, No. 81 / Thursday, April 26, 2012 / Rules and Regulations
industrial boilers with a capacity greater
than 250 million BTUs per hour
(MMBtu/hr), large stationary internal
combustion engines, and large cement
kilns.
The NOX SIP Call was challenged by
a number of state, industry, and labor
groups. On March 3, 2000, the United
States Court of Appeals for the District
of Columbia Circuit (D.C. Circuit) issued
its decision on the NOX SIP Call.
Michigan v. EPA, 213 F.3rd 663 (D.C.
Dir. 2000). While the D.C. Circuit ruled
largely in favor of EPA in support of its
requirements under the 1-hour ozone
NAAQS, it also ruled, in part, against
EPA on certain issues. The portions of
the NOX SIP Call that were upheld by
the Court were termed ‘‘Phase I’’ of the
rule, and applies to EGUs and nonEGUs. EPA’s response to the remanded
portions of the NOX SIP Call (with
several exceptions) was finalized in its
April 21, 2004 (69 FR 21604)
rulemaking action entitled, ‘‘Interstate
Ozone Transport: Response to Court
Decisions on the NOX SIP Call, NOX SIP
Call Technical Amendments, and
Section 126 Rules,’’ termed ‘‘Phase II’’
of the rule. Phase II applies to large
stationary internal combustion engines
and large cement kilns.
EPA approved Virginia’s Phase I NOX
SIP Call submission in a rulemaking
dated July 8, 2003 (68 FR 40520). On
October 30, 2008 (73 FR 64551), EPA
approved Virginia’s Phase II
submission. A discussion of the relevant
portions of the April 21, 2004
rulemaking that pertains to Virginia’s
requirements under Phase II may be
found in the docket for EPA’s October
30, 2008 rulemaking (See Docket #
EPA–R03–OAR–2007–0382). In that
rulemaking, EPA approved into the
Virginia SIP the federally enforceable
state operating permits for four Transco
internal combustion engines to address
the Commonwealth’s emission
reduction requirements for Phase II of
the NOX SIP Call. Transco Station 175
located in Fluvanna County, Virginia
was one of the sources included in that
rulemaking. To meet the requirement for
NOX emissions reductions of 82 percent
from large internal combustion engines,
the operating permit capped NOX
emissions from Station 175 at 195.43
tons per ozone season. The operating
permit requirements for the engines
included NOX emission rate limits and
limits on hours of operation during the
ozone season to achieve the required
emission reductions.
II. Summary of SIP Revision
On November 8, 2011, the
Commonwealth of Virginia Department
of Environmental Quality (VADEQ)
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submitted a formal revision to its SIP.
The SIP revision consists of a request by
the Commonwealth to remove the
permit for Transco Station 175 from the
Virginia SIP. On July 26, 2011, Transco
and VADEQ signed a mutual
determination of permanent shutdown
for the four large stationary natural gasfired spark ignited, reciprocating
internal combustion engines located at
Transco Station 175. The submission
includes a copy of the signed
determination, which required that
operation of the engines cease upon
signature of the document, and that any
future operation of the engines must be
in accordance with Virginia’s
Prevention of Significant Deterioration
(PSD) permit program pursuant to
9VAC5 chapter 80. Should the engines
resume operation in the future, VADEQ
may be required at that time to revise its
SIP as appropriate.
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
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Law, Va. Code § 10.1–1198, precludes
granting a privilege to documents and
information ‘‘required by law,’’
including documents and information
‘‘required by Federal law to maintain
program delegation, authorization or
approval,’’ since Virginia must ‘‘enforce
Federally authorized environmental
programs in a manner that is no less
stringent than their Federal
counterparts. * * *’’ The opinion
concludes that ‘‘[r]egarding § 10.1–1198,
therefore, documents or other
information needed for civil or criminal
enforcement under one of these
programs could not be privileged
because such documents and
information are essential to pursuing
enforcement in a manner required by
Federal law to maintain program
delegation, authorization or approval.’’
Virginia’s Immunity law, Va. Code Sec.
10.1–1199, provides that ‘‘[t]o the extent
consistent with requirements imposed
by Federal law,’’ any person making a
voluntary disclosure of information to a
state agency regarding a violation of an
environmental statute, regulation,
permit, or administrative order is
granted immunity from administrative
or civil penalty. The Attorney General’s
January 12, 1998 opinion states that the
quoted language renders this statute
inapplicable to enforcement of any
Federally authorized programs, since
‘‘no immunity could be afforded from
administrative, civil, or criminal
penalties because granting such
immunity would not be consistent with
Federal law, which is one of the criteria
for immunity.’’
Therefore, EPA has determined that
Virginia’s Privilege and Immunity
statutes will not preclude the
Commonwealth from enforcing its
program consistent with the Federal
requirements. In any event, because
EPA has also determined that a state
audit privilege and immunity law can
affect only state enforcement and cannot
have any impact on Federal
enforcement authorities, EPA may at
any time invoke its authority under the
CAA, including, for example, sections
113, 167, 205, 211 or 213, to enforce the
requirements or prohibitions of the state
plan, independently of any state
enforcement effort. In addition, citizen
enforcement under section 304 of the
CAA is likewise unaffected by this, or
any, state audit privilege or immunity
law.
IV. Final Action
EPA is approving the November 8,
2011 submittal from VADEQ that
removes the operating permit for
Transco Station 175 from the Virginia
SIP. EPA is publishing this rule without
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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 June 25, 2012 without
further notice unless EPA receives
adverse comment by May 29, 2012. 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.
V. Statutory and Executive Order
Reviews
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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
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);
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• 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. Section 804,
however, exempts from section 801 the
following types of rules: Rules of
particular applicability; rules relating to
agency management or personnel; and
rules of agency organization, procedure,
or practice that do not substantially
affect the rights or obligations of nonagency parties. 5 U.S.C. 804(3). Because
this is a rule of particular applicability,
EPA is not required to submit a rule
report regarding this action under
section 801.
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 June 25, 2012. 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
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24845
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 remove the Transco
Station 175 operating permit from the
Virginia SIP 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.
Dated: April 12, 2012.
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
(d) is amended by removing the entry
for Transcontinental Pipeline Station
175.
■
[FR Doc. 2012–9973 Filed 4–25–12; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2011–0870; FRL–9658–9]
Approval and Promulgation of
Implementation Plans; South Dakota;
Regional Haze State Implementation
Plan
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
EPA is taking final action to
approve a revision to the South Dakota
State Implementation Plan (SIP)
addressing regional haze submitted by
the State of South Dakota on January 21,
2011, along with an amendment
submitted on September 19, 2011. EPA
has determined that the plan submitted
by South Dakota satisfies the
requirements of the Clean Air Act (CAA
or Act) and our rules that require states
to prevent any future and remedy any
existing man-made impairment of
visibility in mandatory Class I areas
caused by emissions of air pollutants
from numerous sources located over a
SUMMARY:
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Agencies
[Federal Register Volume 77, Number 81 (Thursday, April 26, 2012)]
[Rules and Regulations]
[Pages 24843-24845]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-9973]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2012-0024; FRL-9664-4]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Removal of Transcontinental Gas Pipe Line Corporation Permit
From State Implementation Plan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is taking direct final action to approve a revision to the
Virginia State Implementation Plan (SIP). The revision pertains to a
Transcontinental Gas Pipe Line Corporation (Transco) operating permit
that EPA approved into the Virginia SIP to meet nitrogen oxides
(NOX) reduction requirements for large stationary internal
combustion engines under the NOX SIP Call. Transco Station
175 has permanently shut down, and this revision removes the permit
from the Virginia SIP. EPA is approving this revision in accordance
with the requirements of the Clean Air Act (CAA).
DATES: This rule is effective on June 25, 2012 without further notice,
unless EPA receives adverse written comment by May 29, 2012. 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-2012-0024 by one of the following methods:
A. www.regulations.gov. Follow the on-line instructions for
submitting comments.
B. Email: fernandez.cristina@epa.gov.
C. Mail: EPA-R03-OAR-2012-0024, Cristina Fernandez, Associate
Director, Office of Air Quality Planning, Mailcode 3AP30, 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-
2012-0024. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at 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 www.regulations.gov or email. The
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 email comment
directly to EPA without going through www.regulations.gov, your email
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
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 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 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
email at powers.marilyn@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
I. Background
EPA issued the NOX SIP Call (63 FR 57356, October 27,
1998) to require 22 eastern states and the District of Columbia to
reduce specified amounts of one of the main precursors of ground-level
ozone, NOX, in order to reduce interstate ozone transport.
EPA found that the sources in these states emit NOX in
amounts that contribute significantly to nonattainment of the 1-hour
ozone national ambient air quality standard (NAAQS) in downwind states.
In the NOX SIP Call, the amount of reductions required by
states were calculated based on application of available, highly cost-
effective controls on certain source categories of NOX.
These source categories included large fossil fuel-fired electric
generating units (EGUs) serving a generator with a capacity greater
than 25 megawatts (MWe), fossil fuel-fired non-EGUs (such as large
[[Page 24844]]
industrial boilers with a capacity greater than 250 million BTUs per
hour (MMBtu/hr), large stationary internal combustion engines, and
large cement kilns.
The NOX SIP Call was challenged by a number of state,
industry, and labor groups. On March 3, 2000, the United States Court
of Appeals for the District of Columbia Circuit (D.C. Circuit) issued
its decision on the NOX SIP Call. Michigan v. EPA, 213 F.3rd
663 (D.C. Dir. 2000). While the D.C. Circuit ruled largely in favor of
EPA in support of its requirements under the 1-hour ozone NAAQS, it
also ruled, in part, against EPA on certain issues. The portions of the
NOX SIP Call that were upheld by the Court were termed
``Phase I'' of the rule, and applies to EGUs and non-EGUs. EPA's
response to the remanded portions of the NOX SIP Call (with
several exceptions) was finalized in its April 21, 2004 (69 FR 21604)
rulemaking action entitled, ``Interstate Ozone Transport: Response to
Court Decisions on the NOX SIP Call, NOX SIP Call
Technical Amendments, and Section 126 Rules,'' termed ``Phase II'' of
the rule. Phase II applies to large stationary internal combustion
engines and large cement kilns.
EPA approved Virginia's Phase I NOX SIP Call submission
in a rulemaking dated July 8, 2003 (68 FR 40520). On October 30, 2008
(73 FR 64551), EPA approved Virginia's Phase II submission. A
discussion of the relevant portions of the April 21, 2004 rulemaking
that pertains to Virginia's requirements under Phase II may be found in
the docket for EPA's October 30, 2008 rulemaking (See Docket
EPA-R03-OAR-2007-0382). In that rulemaking, EPA approved into the
Virginia SIP the federally enforceable state operating permits for four
Transco internal combustion engines to address the Commonwealth's
emission reduction requirements for Phase II of the NOX SIP
Call. Transco Station 175 located in Fluvanna County, Virginia was one
of the sources included in that rulemaking. To meet the requirement for
NOX emissions reductions of 82 percent from large internal
combustion engines, the operating permit capped NOX
emissions from Station 175 at 195.43 tons per ozone season. The
operating permit requirements for the engines included NOX
emission rate limits and limits on hours of operation during the ozone
season to achieve the required emission reductions.
II. Summary of SIP Revision
On November 8, 2011, the Commonwealth of Virginia Department of
Environmental Quality (VADEQ) submitted a formal revision to its SIP.
The SIP revision consists of a request by the Commonwealth to remove
the permit for Transco Station 175 from the Virginia SIP. On July 26,
2011, Transco and VADEQ signed a mutual determination of permanent
shutdown for the four large stationary natural gas-fired spark ignited,
reciprocating internal combustion engines located at Transco Station
175. The submission includes a copy of the signed determination, which
required that operation of the engines cease upon signature of the
document, and that any future operation of the engines must be in
accordance with Virginia's Prevention of Significant Deterioration
(PSD) permit program pursuant to 9VAC5 chapter 80. Should the engines
resume operation in the future, VADEQ may be required at that time to
revise its SIP as appropriate.
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 ``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 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 November 8, 2011 submittal from VADEQ that
removes the operating permit for Transco Station 175 from the Virginia
SIP. EPA is publishing this rule without
[[Page 24845]]
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 June 25, 2012 without further notice unless EPA
receives adverse comment by May 29, 2012. 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.
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 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 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. Section 804, however, exempts from section 801 the
following types of rules: Rules of particular applicability; rules
relating to agency management or personnel; and rules of agency
organization, procedure, or practice that do not substantially affect
the rights or obligations of non-agency parties. 5 U.S.C. 804(3).
Because this is a rule of particular applicability, EPA is not required
to submit a rule report regarding this action under section 801.
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 June 25, 2012. 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 remove the Transco Station 175 operating permit from
the Virginia SIP 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.
Dated: April 12, 2012.
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 (d) is amended by removing
the entry for Transcontinental Pipeline Station 175.
[FR Doc. 2012-9973 Filed 4-25-12; 8:45 am]
BILLING CODE 6560-50-P