[Federal Register: January 18, 2011 (Volume 76, Number 11)]
[Rules and Regulations]
[Page 2829-2832]
[DOCID:fr18ja11-13]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2010-0881; FRL-9251-9]

Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Adoption of 8-hour Ozone Standard and Related Reference
Conditions, and Update of Appendices

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve a revision to the
Commonwealth of Virginia State Implementation Plan (SIP). The revision
adds the 2008 8-hour ozone National Ambient Air Quality Standard
(NAAQS) of 0.075 parts per million (ppm) and related reference
conditions and updates the list of appendices under ``Documents
Incorporated by Reference.'' Virginia's SIP revision for the NAAQS for
ozone is consistent with the 8-hour Federal standard. This action is
being taken under the Clean Air Act (CAA).

DATES: This rule is effective on March 21, 2011 without further notice,
unless EPA receives adverse written comment by February 17, 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-2010-0881 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for
submitting comments.
    B. E-mail<EMAIL_ADDRESS>    C. Mail: EPA-R03-OAR-2010-0881, Marilyn Powers, Acting Associate
Director, Office of Air Program 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-
2010-0881. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at http://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 http://
www.regulations.gov or e-mail. The http://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 http://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
http://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 http://
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: Irene Shandruk,<PHONE_NUMBER>, or by
e-mail at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

    On September 27, 2010, the Commonwealth of Virginia submitted a
formal revision to its SIP. The SIP revision amends the existing SIP to
add the 2008 8-hour ozone NAAQS and related reference conditions.
    The Clean Air Act (CAA) specifies that EPA must reevaluate the
appropriateness of each of the NAAQS every five years. As part of the
process, EPA reviewed the latest health-based research and determined
that a revised NAAQS for ozone was necessary to protect public health.
EPA revised the 8-hour standard to a level of 0.075 parts per million
(ppm) to provide increased protection for children and other ``at
risk'' populations against an array of ozone-related adverse health
effects. EPA promulgated this more stringent NAAQS for ozone on March
27, 2008 (73 FR 16436).

II. Summary of SIP Revision

    On September 27, 2010, the Commonwealth of Virginia submitted a
formal revision to its SIP. The SIP revision consists of an amendment
which includes the revised ambient air quality standard for ozone, and
related reference conditions. Virginia's revision incorporates the
Federal 8-hour ozone NAAQS into the Code of Virginia (9VAC5 Chapter
30). In addition, the list of appendices to 40 CFR Part 51 is being
updated under documents incorporated by reference (9VAC5-20-21).
    The following are the specific sections that are being modified or
added:
     9VAC5-20-21: Documents incorporated by reference
(modified).
     9VAC5-30-55: Ozone (8-hour, 0.08 ppm) (modified).
     9VAC5-30-56: Ozone (8-hour, 0.075 ppm) (added).

III. General Information Pertaining to SIP Submittals From the
Commonwealth of Virginia

    In 1995, Virginia adopted legislation that provides for, subject to
certain conditions, 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 Virginia's SIP revisions for the 2008 ozone NAAQS
and related reference conditions, as well as the updated list of
appendices to 40 CFR part 51 under ``Documents Incorporated by
Reference.'' 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 March 21, 2011
without further notice unless EPA receives adverse comment by February
17, 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 Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve State
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves State law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by State law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have Tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the State,
and EPA notes that it will not impose substantial direct costs on
Tribal governments or preempt Tribal law.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by March 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. 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 pertaining to Virginia's adoption
of the 2008 8-hour ozone NAAQS of 0.075 parts per million (ppm) and
related reference conditions 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, Reporting and recordkeeping
requirements, Volatile organic compounds.

    Dated: December 22, 2010.
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 entry for Section 5-30-55 and by adding the entry for Section 5-30-
56. The table in paragraph (e) is amended by adding an entry for
``Documents Incorporated by Reference'' after the ninth existing entry
for ``Documents Incorporated by Reference.'' The amendments read as
follows:

Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

                                 Epa-Approved Virginia Regulations and Statutes
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                                                            State
         State citation               Title/subject       effective   EPA approval date  Explanation [former SIP
                                                             date                               citation]
----------------------------------------------------------------------------------------------------------------

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                                                  * * * * * * *
                          9 VAC 5, Chapter 30 Ambient Air Quality Standards [Part III]
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                                                  * * * * * * *
5-30-55........................  Ozone (8-hour, 0.08         6/24/09  1/18/11 [Insert    Revised section.
                                  ppm).                                page number
                                                                       where the
                                                                       document begins].
5-30-56........................  Ozone (8-hour, 0.075        6/24/09  1/18/11 [Insert    Added section.
                                  ppm).                                page number
                                                                       where the
                                                                       document begins].

                                                  * * * * * * *
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* * * * *
    (e) * * *

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                                                         State
   Name of non-regulatory SIP         Applicable       submittal    EPA approval date   Additional  explanation
            revision                geographic area       date
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                                                  * * * * * * *
Documents Incorporated by         Statewide.........      9/27/10  1/18/11 [Insert     Revised sections.
 Reference (9 VAC 5-20-21,                                          page number where
 Sections B and E.1.).                                              the document
                                                                    begins].

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[FR Doc. 2011-487 Filed 1-14-11; 8:45 am]
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