EPA Registration Division contact: Sidney Jackson, ( 703) 305 7610 Interregional Research Project # 4 ( IR 4)

PP# 3E6755, 5E6969, 5E6970 EPA has received pesticide petitions ( PP# 5E6755, 5E6969, and 5E6970) from Interregional Research Project # 4 ( IR 4), 681 U. S. Highway # 1 South, North Brunswick, NJ 08902 3390, proposing, pursuant to section 408( d) of the Federal Food, Drug, and Cosmetic Act ( FFDCA), 21 U. S. C. 346a( d), to amend 40 CFR part 180.588 by establishing tolerances for residues of [ quinoxyfen ( 5,7 dichloro 4( 4 fluorophenoxy) quinoline in or on the raw agricultural commodities lettuce ( head and leaf) at 17 parts per million ( ppm) ( PP# 5E6970); melon subgroup 9A at 0.1 ppm ( PP# 5E6969); peppers ( bell and non bell) at 1.0 ppm ( PP# 3E6755); eggplant at 1.0 ppm ( PP# 3E6755) and strawberry at 0.8 ppm ( PP# 5E6970). EPA has determined that the petition contains data or information regarding the elements set forth in section 408( d)( 2) of the FFDCA; however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data supports granting of the petition. Additional data may be needed before EPA rules on the petition.

A. Residue Chemistry 1. Plant metabolism. The metabolism of quinoxyfen has been studied in a variety of crops under both outdoor ( wheat, tomatoes and sugar beets) and glasshouse ( grapes and cucumbers) conditions. The nature of residues ( NOR) is adequately understood for the purposes of these tolerances. Based on the findings from these studies, quinoxyfen is the primary residue in all crops and therefore, the only residue of concern. Metabolites were present at low levels (< 10% of total radioactive residue). A confined rotational crop study was conducted with quinoxyfen which confirmed minimal carryover of residues (> 0.003 : g/ g) to succeeding crops.]

2. Analytical method. A practical analytical method is available to monitor and enforce the tolerances of quinoxyfen residues in crops. The analytical method uses capillary gas chromatography and mass selective detection ( GC MSD) with limits of quantitation ( LOQ) of approximately 0.01 ppm. An independent laboratory has validated the method.]

3. Magnitude of residues. The residue data in support of the proposed tolerances was generated from the magnitude of residue studies on lettuce ( head and leaf), melon, peppers ( bell and non bell)/ eggplant and strawberry.

i. Lettuce. Magnitude of residue studies were conducted on head lettuce at 8 sites and leaf lettuce at 8 sites. Each treated plot received 4 5 foliar applications at 6 8 day intervals at a rate of about 0.13 lb ai/ A per application with a total rate of 0.52 to 0.65 lb ai/ A for the season. Residues of quinoxyfen in lettuce collected one day after the last application were0.22 to 14 ppm. The proposed tolerance for quinoxyfen in or on lettuce ( head and leaf) is 17 ppm and is adequate to cover the highest expected field residues from the labeled use of quinoxyfen in lettuce. 2 ii. Melon. Sub group 9A, melons. A magnitude of residue study was conducted on cantaloupes at 11 sites. Each treated plot received 4 foliar applications at 6 12 day intervals at a rates ranging from 0.124 to 0.151 lb ai/ A per application. The total rate range was 0.52 0.65 lb ai/ A for the season. Cantaloupes were harvested 2 4 days after the last application. Residues of quinoxyfen ranged from 0.22 ppm to 14 ppm. The proposed tolerance for quinoxyfen in or on subgroup 9A, melons is 0.1 ppm. This tolerance is adequate to cover the highest expected field residues from the labeled use of quinoxyfen in melons, subgroup 9A.

iii. Peppers ( bell and non_ bell)/ eggplant. A magnitude of residue study was conducted on bell and non bell peppers at 11 sites. Each treated plot received 4 foliar applications at 6 8 day intervals at a rate of approximately 0.13 lb ai/ A for a total seasonal use rate of 0.52 lb ai/ A. Peppers were harvested at 2 5 days following the final application. Residues of quinoxyfen in bell and non bell peppers ranged from 0.0090 to 0.6549 ppm. The proposed tolerance for quinoxyfen in or on peppers ( bell and non bell) and eggplant is 1.0 ppm and is adequate to cover the highest expected field residues from the labeled use of quinoxyfen.

iv. Strawberry. Magnitude of residue studies were conducted on strawberries at 8 sites. Each treated plot received 4_ 5 foliar applications at 6 8 day intervals at a rate of about 0.13 lb ai/ A per application with a total rate of 0.52 lb ai/ A for the season. Residues of quinoxyfen in strawberries collected one day after the last application were 0.32 to 0.58 ppm. The proposed tolerance for quinoxyfen in or on strawberries is 0.8 ppm and is adequate to cover the highest expected field residues from the labeled use of quinoxyfen in strawberries.

B. Toxicological Profile 1. Acute toxicity. Quinoxyfen ( technical) has low acute toxicity. The acute oral LD50 in rats was > 5000 mg/ kg whereas the dermal LD50 in rabbits was > 2000 mg/ kg. The acute inhalation LC50 in rats was greater than the highest attainable aerosol concentration ( 3.38 mg/ L). Quinoxyfen produced no dermal irritation and only mild eye irritation in rabbits. A guinea pig dermal sensitization study conducted by the modified Buehler method found no sensitization, whereas a study conducted by the Magnusson and Kligman maximization test showed a positive sensitization reaction. Formulations of quinoxyfen are water based suspension concentrates that have similar low acute toxicity. These suspension concentrates are classified as non_ sensitizer, based on the results from testing in guinea pigs.

2. Genotoxicty. Quinoxyfen was negative for genotoxicity when tested in in vitro and in vivo systems.

3. Reproductive and developmental toxicity. Quinoxyfen did not have any effect on reproductive parameters at dose levels that induced treatment_ related effects in parental rats. Transient decreases in pup body weights were seen prior to weaning, but dietary concentrations were targeted for adults and consumption of treated diets by the pups resulted in dose levels to 3 the pups approximately 3_ fold higher than in adults. Post_ weaning weights were comparable to controls. A teratogenic potential for quinoxyfen was not demonstrated in either rats or rabbits at dose levels that induced maternal toxicity.

4. Subchronic toxicity. Quinoxyfen caused increased liver weights and microscopic hepatocellular hypertrophy when given at sufficiently high dose levels in rats and mice for13 weeks; no effects were observed in the subchronic dog study at the highest dose tested. Very high dietary levels were associated with slight hepatocellular necrosis. Similar increases in liver weights were seen in chronic studies. In addition, increased kidney weights, and an increase in the incidence of chronic progressive glomerulonephropathy, were seen after 24 months in female rats given high dose levels of quinoxyfen.

5. Chronic toxicity. i. Dog. Chronic toxicity seen in dogs included liver effects as noted above, along with regenerative anemia at high dose levels.

ii. Mouse. Very high dietary levels were associated with slight hepatocellular necrosis. Similar increases in liver weights were seen in chronic studies.

iii. Rat. In addition, increased kidney weights, and an increase in the incidence of chronic progressive glomerulonephropathy, were seen after 24 months in female rats given high dose levels of quinoxyfen.

iv. Carcinogenicity. Using the Guidelines for Carcinogen Risk Assessment Using the Guidelines for Carcinogen Risk Assessment published September 24, 1986 ( 51 FR 33992), it is proposed that quinoxyfen be classified as Group E for carcinogenicity ( no evidence of carcinogenicity) based on the results of studies in two species. Dow AgroSciences believes there was no evidence of carcinogenicity in an 18 month mouse feeding study and a 24 month rat feeding study at any dosage tested.]

6. Animal metabolism. Quinoxyfen is rapidly absorbed, extensively metabolized and rapidly eliminated in the urine and feces. Studies conducted with 14C_ quinoxyfen, labeled in either the phenyl ring or the quinoline ring, indicated extensive cleavage of the diaryl ether linkage. There were no substantive differences in the metabolism and disposition of quinoxyfen between males and females, or between single or repeated exposure. Parent quinoxyfen was not found in the urine, though it was identified in the feces. The major metabolites found in urine and/ or feces included ( 1) acid_ labile conjugates of the phenyl ring moiety ( 4 FP) and quinoline ring moiety ( DCHQ); ( 2) lesser quantities of free 4 FP and DCHQ; and, ( 3) isomers of fluorophenyl_ ring hydroxy_ quinoxyfen, both free and glucuronide and/ or sulfate conjugates. Trace quantity of the 3 OH metabolite was also identified in the urine and feces of rats.

7. Metabolite toxicology. The nature of residue studies ( NOR) of quinoxyfen in plants indicated that the majority of applied radiolabeled material remained as the parent compound. Analyses from NOR studies in a number of crops revealed low residues of metabolites (< 10% TRR) identified as ( 1) a quinoline_ ring hydroxylated metabolite, most likely 3 OH; ( 2) a 4 cyclized deschloro photoproduct ( CFBPQ); ( 3) 4 FP; and, ( 4) a metabolite in which the fluorine was replaced by a hydroxyl group.

Of these metabolites, 4 FP ( formed by ether bridge cleavage), and DCHQ ( corresponding to the other half of the molecule), as well as trace quantities of 3 OH, have been identified in rat urine and/ or feces. These data suggest that most metabolites formed in plants are similarly formed in mammals and are of little toxicologic concern, based on the existing data for quinoxyfen.

8. Endocrine disruption. There is no evidence from any studies to suggest that quinoxyfen has an effect on any endocrine system.

C. Aggregate Exposure 1. Dietary exposure. i. Food. Potential dietary exposure and risk assessment was estimated using DEEM ( Dietary Exposure Evaluation Model, Version 7.76) with USDA food consumption data CSFII Survey 1994 1998. The dietary exposure assessment was performed using a conservative approach ( Tier I) and the estimated theoretical maximum residue contribution ( TMRC) was based on the existing uses on cherry, hops and grapes as well as the proposed tolerances for quinoxyfen on or in peppers, eggplant, subgroup 9A, melons, lettuce and strawberries with the assumption that 100% of these crops were treated with quinoxyfen.

The chronic dietary exposure was evaluated using a chronic reference dose ( RfD) of 0.2 mg/ kg/ day based on NOEL of 20 mg/ kg/ day from chronic rat, chronic dog, and rat reproduction studies and uncertainty factor of 100. No additional FQPA uncertainty factor is needed. For the U. S. general population, the exposure was estimated to be 0.004650 mg/ kg/ day which utilizes only 2.3% of the RfD. The population sub group with the highest potential exposure are females 13+ ( nursing) with an exposure of 0.005595 mg/ kg/ day that represents 2.8% of the RfD. The % of the RfD is significantly below the acceptable 100%; therefore, it demonstrates no chronic dietary concern.

a. Acute dietary exposure. No acute dietary risk for quinoxyfen was evaluated since no appropriate toxicity endpoint attributable to a single dose could be identified. Therefore, an acute reference dose was not established.

b. Chronic dietary exposure. The chronic dietary exposure was evaluated using a chronic reference dose ( RfD) of 0.2 mg/ kg/ day based on NOEL of 20 mg/ kg/ day from chronic rat, chronic dog, and rat reproduction studies and uncertainty factor of 100. No additional FQPA uncertainty factor is needed. For the U. S. general population, the exposure was estimated to be 0.004650 mg/ kg/ day which utilizes only 2.3% of the RfD. The population sub group with the highest potential exposure are females 13+ ( nursing) with an exposure of 0.005595 mg/ kg/ day that represents 2.8% of the RfD. The % of the RfD is significantly below the acceptable 100%; therefore, it demonstrates no chronic dietary concern. 5 c. Cancer dietary exposure. Using the Guidelines for Carcinogen Risk Assessment published September 24, 1986 ( 51 FR 33992), it is proposed that quinoxyfen be classified as Group E for carcinogenicity ( no evidence of carcinogenicity) based on the results of studies in two species. Dow AgroSciences believes there was no evidence of carcinogenicity in an 18_ month mouse feeding study and a 24 month rat feeding study at any dosage tested.

ii. Drinking water. Based on the rapid degradation of quinoxyfen in water and its high tendency to sorb to soils, no surface water or groundwater contamination is expected. In a recent assessment, the Agency used FIRST and SCI GROW models to estimate the environmental concentration ( EEC) for surface water and ground water respectively. The EECs of quinoxyfen for chronic exposure were estimated to be 0.8 ppb for surface water and 0.006 ppb for ground water.

Drinking water levels of comparison ( DWLOC) is a theoretical upper limit on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food, and from residential uses. DWLOC is not a regulatory standard for drinking water, but is used as a point of comparison against the estimated potential concentrations in groundwater or surface water. It is calculated by subtracting the food dietary exposure ( from DEEM analysis) from the RfD and then expressed as : g/ L using default body weights ( 70 kg for adult and 10 kg for infants) and drinking water consumption ( 2 L/ day for adults and 1 L/ day for children). The DWLOC for the general U. S. population and 1 6 yrs old children ( population sub_ group with highest potential exposure) was calculated to be 6837 : g/ L and 1950 : g/ L, respectively. The DWLOCs are substantially greater than the estimated residue concentration in groundwater or surface water, therefore, exposure to quinoxyfen would not result in unacceptable levels of aggregate human health risk.

2. Non dietary exposure. Quinoxyfen is not currently registered for use on any sites that would result in residential exposure. Thus, the risk from non_ dietary exposure would be considered negligible.

D. Cumulative Effects The potential for cumulative effects of quinoxyfen and other substances that have a common mechanism of toxicity is also considered. Quinoxyfen is a member of the quinoline class of fungicides. No information is available to determine whether quinoxyfen has a common mechanism of toxicity with other pesticides. Therefore, it is appropriate to consider only the potential risks of quinoxyfen in an aggregate exposure assessment.

E. Safety Determination 1. U. S. population. Using the conservative exposure assumptions described above and based on the completeness and reliability of the toxicity data, the aggregate exposure to 6 quinoxyfen utilizes 2.3% of the RfD for the U. S. population. EPA generally has no concern for exposures below 100% of the RfD because the RfD represents the level at or below which daily aggregate dietary exposure over a lifetime will not pose appreciable risks to human health. Thus, there is a reasonable certainty that no harm will result from aggregate exposure to quinoxyfen residues from the proposed uses.

2. Infants and children. [ In assessing the potential for additional sensitivity of infants and children to residues of quinoxyfen, data from developmental toxicity studies in rats and rabbits and a 2 generation reproduction study in the rat are considered. The developmental toxicity studies are designed to evaluate adverse effects on the developing organism resulting from pesticide exposure during prenatal development. Reproduction studies provide information relating to effects from exposure to the pesticide on the reproductive capability and potential systemic toxicity of mating animals and on various parameters associated with the well being of offspring.

FFDCA Section 408 provides that EPA may apply an additional safety factor for infants and children in the case of threshold effects to account for pre and post natal toxicity and the completeness of the database. Based on the current toxicological data requirements, the database for quinoxyfen relative to pre and post natal effects for children is complete. Quinoxyfen had no effect on reproduction or embryo fetal development at any dosage tested. Therefore, no additional FQPA uncertainty factor is needed. The NOEL of 20 mg/ kg/ day found in the chronic rat, chronic dog, and rat reproduction studies was used to calculate the RfD of 0.2 mg/ kg/ day and is appropriate for chronic risk assessment to infants and children. Using the conservative exposure assumptions previously described, the percent RfD utilized by the potential aggregate exposure to quinoxyfen residues is about 2.5% for children ( 1 6 yrs old), the population subgroup with highest potential exposure. Therefore, based on the completeness and reliability of the toxicity data and the conservative exposure assessment, Dow AgroSciences concludes that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to quinoxyfen residues from proposed uses.

F. International Tolerances There are no Codex maximum residue levels established for residues of quinoxyfen.


[Federal Register: September 30, 2009 (Volume 74, Number 188)]
[Notices]
[Page 50178-50179]
[DOCID:fr30se09-36]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 13421-000]

Dillon Dam Hydroelectric Project; Notice of Preliminary Permit
Application Accepted for Filing and Soliciting Comments, Motions To
Intervene, and Competing Applications

September 23, 2009.
    On April 2, 2009, Muskingum Valley Hydro (Muskingum) filed an
application, pursuant to section 4(f) of the Federal Power Act,
proposing to study the feasibility of developing the Dillon Dam
Hydroelectric Project, to be located on the Licking River in Muskingum
County, near Zanesville, Ohio. The proposed project would be located at
the U.S. Army Corps of Engineers Dillon Dam consisting of the existing
1,560-acre impoundment with a normal water surface elevation of 735
feet mean sea level.
    The proposed project would consist of: (1) A new powerhouse to be
located on the downstream side of Dillon dam

below the outlet works; (2) a new 50-foot-long, 96-inch penstock; (3) a
new turbine generator unit with an installed capacity of 1.59 MW; and
(4) a new 300-foot-long, 14.7-kV transmission line. The project would
have an estimated average annual generation of 9,700 megawatt-hours.
Muskingum states that it will investigate various other types of
hydroelectric generation at the site including Very Low Head Turbine
technology.
    Applicant Contact: Randall Smith, Muskingum Valley Hydro, 4950
Frazeysburg Road, Zanesville, Ohio 43701<PHONE_NUMBER>.
    FERC Contact: Patrick Murphy,<PHONE_NUMBER>.
    Deadline for filing comments, motions to intervene, competing
applications (without notices of intent), or notices of intent to file
competing applications: 60 days from the issuance of this notice.
Comments, motions to intervene, notices of intent, and competing
applications may be filed electronically via the Internet. See 18 CFR
385.2001(a)(1)(iii) and the instructions on the Commission's Web site
under the ``e-Filing'' link. If unable to be filed electronically,
documents may be paper-filed. To paper-file, an original and eight
copies should be mailed to: Kimberly D. Bose, Secretary, Federal Energy
Regulatory Commission, 888 First Street, NE., Washington, DC 20426. For
more information on how to submit these types of filings please go to
the Commission's Web site located at http://www.ferc.gov/filing-
comments.asp. More information about this project can be viewed or
printed on the ``eLibrary'' link of the Commission's Web site at http:/
/www.ferc.gov/docs-filing/elibrary.asp. Enter the docket number (P-
13421) in the docket number field to access the document. For
assistance, call toll-free 1-866-208-3372.

Kimberly D. Bose,
Secretary.
[FR Doc. E9-23517 Filed 9-29-09; 8:45 am]

BILLING CODE 6717-01-P


	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

	[EPA-R03-OAR-2009-0599; FRL-       ]

	Approval and Promulgation of Air Quality Implementation Plans;

	Virginia; Revision to Clean Air Interstate Rule Sulfur Dioxide Trading
Program

AGENCY:     Environmental Protection Agency (EPA).

ACTION:     Direct final rule.

SUMMARY:  EPA is taking direct final action to approve a revision to the
Commonwealth of Virginia State Implementation Plan (SIP).  The revision
pertains to the timing for the first phase of the sulfur dioxide (SO2)
trading budget under the Commonwealth’s approved regulations that
implement the requirements of the Clean Air Interstate Rule (CAIR).  EPA
is approving this revision to change the start date of Virginia’s CAIR
SO2 trading budget from the control period in 2009 to the control period
in 2010 in accordance with the requirements of the Clean Air Act (CAA).

DATES:  This rule is effective on [Insert date 60 days after publication
in the Federal Register]  without further notice, unless EPA receives
adverse written comment by [Insert date 30 days after publication in the
Federal Register].  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-2009-0599 by one of the following methods:

A.    www.regulations.gov.  Follow the on-line instructions for
submitting comments.

B.    E-mail<EMAIL_ADDRESS>
C.    Mail:  EPA-R03-OAR-2009-0599, Cristina Fernandez, Chief, Air
Quality Planning Branch, Mailcode 3AP21, 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-2009-0599.  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
e-mail.  The www.regulations.gov website 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
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
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,<PHONE_NUMBER>, or by
e-mail at<EMAIL_ADDRESS>

SUPPLEMENTARY INFORMATION:

Background

On January 14, 2009, the Commonwealth of Virginia submitted a formal
revision to its SIP.  The SIP revision consists of a change in timing
for the first phase of the Commonwealth’s approved CAIR SO2 trading
budget.  The start for the first phase of the SO2 trading budget is
changed from the control period in 2009 to the control period in 2010.

II.  Summary of SIP Revision

Virginia regulation 9 VAC 5-140-3400 is amended to change the timing for
the CAIR SO2 budget from the control period in 2009 to the control
period in 2010.  In addition, the section title of 9 VAC 5-140-3400 is
changed to specifically reflect the CAIR SO2 annual trading budgets.

The EPA-administered CAIR SO2 trading programs under States’ CAIR SIPs
and under the CAIR FIP start on January 1, 2010, and the associated CAIR
SO2 trading budgets apply starting with the 2010 control period.
Virginia’s existing provision, requiring an SO2 budget starting in the
2009 control period, is inconsistent with the CAIR trading program.  In
the SIP revision, Virginia explains that this change corrects a
technical error in its approved CAIR SIP.

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 ( 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 SIP revision submitted by the Commonwealth of
Virginia on January 14, 2009.  The SIP revision incorporates timing
changes to the Commonwealth’s CAIR SO2 trading program that make it
consistent with the regional CAIR SO2 trading program, under which SO2
trading budgets apply starting in 2010.

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 [Insert date 60 days from date of
publication in the Federal Register] without further notice unless EPA
receives adverse comment by [Insert date 30 days from date of
publication in the Federal Register].  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 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 (Public Law 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 [Insert date 60 days from date of
publication of this document in the Federal Register].  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 approve a Virginia SIP revision that changes
the applicable start date for its SO2 trading budget may not be
challenged later in proceedings to enforce its requirements.  (See
section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by
reference, Sulfur oxides.

                                /s/

_October 13, 2009_____
__________________________

Dated:                                				James W. Newsom,

                                      				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
entry for Chapter 140, Section 5-140-3400 to read as follows:

( 52.2420  	Identification of plan.

*	*	*	*	*

 (c) * * *

	EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES

State citation     	Title/subject	State effective date	EPA approval date
Explanation [former SIP citation]

*     *     *     *     *    *     *

9 VAC 5, Chapter 140	Regulations for Emissions Trading Programs

*     *     *     *     *    *     *

Part IV	SO2 Annual Trading Program

*     *     *     *     *    *     *

5-140-3400	State trading budgets	12/12/07	[Insert Federal Register
publication date] [Insert page number where the document begins]	1.  In
section title, replace “State” with “CAIR SO2 Annual”

2.  In paragraph 1, replace 2009 with 2010.

*     *     *     *     *    *     *

*    *     *     *      *

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