[Federal Register Volume 76, Number 17 (Wednesday, January 26, 2011)]
[Rules and Regulations]
[Pages 4537-4539]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1466]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2010-0882; FRL-9255-9]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Adoption of the Revised Lead Standards 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 revisions to the
Commonwealth of Virginia State Implementation Plan (SIP). The revisions
add the primary and secondary lead standards of 0.15 micrograms per
cubic meter ([mu]g/m\3\), related reference conditions, and update the
list of appendices under ``Documents Incorporated by Reference.''
Virginia's SIP revisions for the national ambient air quality standards
(NAAQS) for lead are consistent with the Federal lead standards. This
action is being taken under the Clean Air Act (CAA).
DATES: This rule is effective on March 28, 2011 without further notice,
unless EPA receives adverse written comment by February 25, 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-2010-0882 by one of the following methods:
A. www.regulations.gov. Follow the on-line instructions for
submitting comments.
B. E-mail: [email protected].
C. Mail: EPA-R03-OAR-2010-0882, 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-
2010-0882. 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: Irene Shandruk, (215) 814-2166, or by
e-mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On September 27, 2010, the Commonwealth of Virginia submitted a
formal revision to its SIP. The SIP revision consists of revisions
pertaining to the ambient air quality standards for lead and related
reference conditions. The CAA specifies that EPA must re-evaluate the
appropriateness of its various air quality standards every five years.
As part of the process, EPA reviewed the latest research and determined
that revised standards for lead were necessary to protect public health
and welfare. EPA revised the level of the primary lead standard to a
level of 0.15 micrograms per cubic meter ([mu]g/m\3\) to provide
increased protection for children and other ``at risk'' populations.
The secondary standard was also revised to a level of 0.15 [mu]g/m\3\
to afford increased protection for the environment. EPA promulgated the
more stringent primary and secondary NAAQS for lead on November 12,
2008 (73 FR 66964).
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 primary and secondary ambient air quality
standards for lead and related reference conditions. Virginia's
revision incorporates the Federal lead standards into the Code of
Virginia (9VAC5 Chapter 30). In addition, the list of appendices to 40
CFR Part 51 was updated under ``Documents Incorporated by Reference''
(9VAC5-20-21).
The following are the specific sections that are being modified or
amended:
9VAC5-20-21: Documents Incorporated by Reference
(modified)
9VAC5-30-15: Reference Conditions (modified)
9VAC5-30-80: Lead (amended)
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
[[Page 4538]]
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 revision for the lead 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 28, 2011 without further notice
unless EPA receives adverse comment by February 25, 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 CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
B. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other
[[Page 4539]]
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
C. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by March 28, 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
revised lead standards of 0.15 [mu]g/m\3\ 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, Lead, Reporting and recordkeeping requirements.
Dated: January 5, 2011.
W.C. Early,
Acting Regional Administrator, Region III.
40 CFR Part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for 40 CFR part 52 continues to read as
follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart VV--Virginia
0
2. In Sec. 52.2420, the table in paragraph (c) is amended by revising
the entries for Section 5-30-15 and 5-30-80. 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:
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
date SIP citation]
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* * * * * * *
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9 VAC 5, Chapter 30 Ambient Air Quality Standards [Part III]
* * * * * * *
5-30-15.......................... Reference conditions 6/24/09 1/26/11 [Insert page Revised section.
number where the
document begins].
* * * * * * *
5-30-80.......................... Lead................ 6/24/09 1/26/11 [Insert page Revised paragraphs
number where the A. and B.; added
document begins]. paragraph C.
* * * * * * *
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* * * * *
(e) * * *
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State
Name of non-regulatory SIP Applicable submittal EPA approval date Additional
revision geographic area date Explanation
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* * * * * * *
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Documents Incorporated by Statewide........... 9/27/10 1/26/11 [Insert page Revised sections.
Reference (9 VAC 5-20-21, number where the
Sections E.1.a.(1)(q) and document begins].
E.1.a.(1)(r)).
* * * * * * *
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[FR Doc. 2011-1466 Filed 1-25-11; 8:45 am]
BILLING CODE 6560-50-P