Federal Register / Vol. 76, No. 49 / Monday, March 14, 2011 / Rules and Regulations 13511 

waters of the United States and 

contiguous land areas within an area 

starting at a point latitude 46°20′00′′ N, 

longitude 88°30′00′′ W, proceeding west 

to the Minnesota-North Dakota 

boundary at latitude 46°20′00′′ N, 

longitude 96°36′30′′ W; thence north 

along the Minnesota-North Dakota 

boundary to the intersection of the 

Minnesota-North Dakota boundary and 

the international boundary at latitude 

49°00′02′′ N, longitude 97°13′46′′ W; 

thence east along the international 

boundary to a point at latitude 47°59′23′′ 

N, longitude 87°35′10′′ W; thence south 

to a point near Manitou Island Light at 

latitude 47°25′09′′ N, longitude 

87°35′10′′ W; thence southwest to a 

point near the shore of Lake Superior at 

latitude 46°51′51′′ N, longitude 

87°45′00′′ W; thence southwest to the 

point of origin. 

Dated: March 7, 2011. 

Kathryn A. Sinniger, 

Chief, Office of Regulations and 

Administrative Law, United States Coast 

Guard. 

[FR Doc. 2011–5731 Filed 3–11–11; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2010–0903; FRL–9278–7] 

Approval and Promulgation of Air 

Quality Implementation Plans; Virginia; 

Revisions to the Open Burning 

Regulations 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is taking direct final 

action to approve revisions to the 

Virginia State Implementation Plan 

(SIP). The revisions recodify the open 

burning regulations which are currently 

in the Virginia SIP. There are no 

substantive changes to the rule. EPA is 

approving these revisions to Virginia’s 

open burning regulations in accordance 

with the requirements of the Clean Air 

Act (CAA). 

DATES: This rule is effective on May 13, 

2011 without further notice, unless EPA 

receives adverse written comment by 

April 13, 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–2010–0903 by one of the 

following methods: 

A. http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

B. E-mail: frankford.harold@epa.gov. 

C. Mail: EPA–R03–OAR–2010–0903, 

Harold A. Frankford, Air Protection 

Division, Mailcode 3AP00, U.S. 

Environmental Protection Agency, 

Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

D. Hand Delivery: At the previouslylisted 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– 

0903. 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 submittals are 

available at the Virginia Department of 

Environmental Quality, 629 East Main 

Street, Richmond, Virginia 23219. 

FOR FURTHER INFORMATION CONTACT: 

Harold A. Frankford, (215) 814–2108, or 

by e-mail at frankford.harold@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Throughout this document, whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. On September 27, 2010, the 

Commonwealth of Virginia submitted a 

formal revision to its State 

Implementation Plan (SIP). The SIP 

revision consists of the recodification of 

its open burning regulations. 

II. Summary of SIP Revision 

The recodification moves the 

Commonwealth’s SIP-approved open 

burning regulations from 9VAC5, 

Chapter 140, Part II Article 40 to a new 

9VAC5 Chapter 130, Part I. The 

following table summarizes the current 

and new Virginia Administrative Code 

(VAC) citations for these regulations: 

Regulation title 

Current Virginia 

SIP citation in 

9VAC5 chapter 

40, part II, article 

40 

Revised Virginia 

SIP citation in 

9VAC5 chapter 

130, part I 

Applicability .................................................................................................................................................. 5–40–5600 5–130–10 

Definitions .................................................................................................................................................... 5–40–5610 5–130–20 

Open Burning Prohibitions ........................................................................................................................... 5–40–5620 5–130–30 

Permissible Open Burning ........................................................................................................................... 5–40–5630 5–130–40 

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13512 Federal Register / Vol. 76, No. 49 / Monday, March 14, 2011 / Rules and Regulations 

Regulation title 

Current Virginia 

SIP citation in 

9VAC5 chapter 

40, part II, article 

40 

Revised Virginia 

SIP citation in 

9VAC5 chapter 

130, part I 

Forest Management and Agricultural Practices .......................................................................................... 5–40–5631 5–130–50 

The changes in text to these 

regulations are administrative in nature; 

there are no substantive changes from 

the current SIP-approved regulatory 

text. 

III. General Information Pertaining to 

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 Section 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 Section 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 

Section 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 recodification of 

Virginia’s SIP-approved open burning 

regulations from 9VAC5 Chapter 40, 

Part II, Article 40 to the open burning 

regulations cited in 9VAC5 Chapter 130. 

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 May 13, 2011 without 

further notice unless EPA receives 

adverse comment by April 13, 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 CAA, 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 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 

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Federal Register / Vol. 76, No. 49 / Monday, March 14, 2011 / Rules and Regulations 13513 

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. 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

B. Submission to Congress and the 

Comptroller General 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

C. Petitions for Judicial Review 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by May 13, 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 to 

recodify Virginia’s SIP-approved open 

burning regulations 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, Ozone, Particulate matter, 

Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Dated: March 1, 2011. 

W.C. Early, 

Acting Regional Administrator, Region III. 

40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority for citation for 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 removing the category 

for Article 40 and adding a category for 

Chapter 130 after the existing entry for 

5–91–800, 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] 

*******

9VAC5, Chapter 130 Regulations for Open Burning [Formerly 9VAC5 Chapter 40, Part II, Article 40] 

Part I General Provisions 

5–130–10 .......... Applicability ................................... 3/18/09 3/14/11 [Insert page number 

where the document begins].

Formerly 5–40–5600 

Provisions of Article 40 are applicable only in the Northern Virginia and Richmond Emissions 

Control Areas as defined in 9 

VAC 5–20–206. 

5–130–20 .......... Definitions ..................................... 3/18/09 3/14/11 [Insert page number 

where the document begins].

Formerly 5–40–5610. 

5–130–30 .......... Open Burning Prohibitions ............ 3/18/09 3/14/11 [Insert page number 

where the document begins].

Formerly 5–40–5620. 

5–130–40 .......... Permissible Open Burning ............ 3/18/09 3/14/11 [Insert page number 

where the document begins].

Formerly 5–40–5630. 

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13514 Federal Register / Vol. 76, No. 49 / Monday, March 14, 2011 / Rules and Regulations 

1Chemical Manufacturing Process Unit. 

EPA–APPROVED VIRGINIA REGULATIONS AND STATUTES—Continued 

State citation Title/subject State effective 

date EPA approval date Explanation [former SIP citation] 

5–130–50 .......... Forest Management and Agricultural Practices.3/18/09 3/14/11 [Insert page number 

where the document begins].

Formerly 5–40–5631. 

*******

* * * * * 

[FR Doc. 2011–5625 Filed 3–11–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 63 

[EPA–HQ–OAR–2008–0334; FRL–9279–8] 

RIN 2060–AQ89 

National Emission Standards for 

Hazardous Air Pollutants for Chemical 

Manufacturing Area Sources 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is issuing this final rule 

to stay the requirement for certain 

affected sources to comply with the title 

V permit program during the pendency 

of the reconsideration process. On June 

15, 2010, EPA notified Petitioners that 

the Agency intended to initiate the 

reconsideration process in response to 

their request for reconsideration of 

certain provisions in the National 

Emission Standards for Hazardous Air 

Pollutants for Chemical Manufacturing 

Area Sources. Among the provisions 

EPA is reconsidering is a requirement 

that certain affected sources obtain a 

permit. 

On December 14, 2010, EPA issued a 

90-day stay of the requirement for 

certain affected sources to comply with 

the title V permit program. Because we 

believed that the reconsideration 

process would not be completed within 

90 days, we concurrently proposed to 

stay the provision requiring certain 

sources to obtain a permit until the final 

reconsideration rule is published in the 

Federal Register. After considering the 

comments received, EPA is 

promulgating the stay of compliance 

through this final rule. 

DATES: This final rule is effective on 

March 14, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2008–0334. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., confidential business information 

or other information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically through http:// 

www.regulations.gov, or in hard copy at 

the EPA Docket Center, Public Reading 

Room, EPA West, Room 3334, 1301 

Constitution Ave., NW., Washington, 

DC. The Public Reading Room is open 

from 8:30 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the Air 

Docket is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Nick Parsons, Office of Air Quality 

Planning and Standards, Sector Policies 

and Programs Division, Refining and 

Chemicals Group (E143–01), 

Environmental Protection Agency, 

Research Triangle Park, NC 27711; 

telephone number: (919) 541–5372; fax 

number: (919) 541–0246; e-mail address: 

parsons.nick@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The EPA published final National 

Emission Standards for Hazardous Air 

Pollutants for Chemical Manufacturing 

Area Sources (CMAS) on October 29, 

2009. 40 CFR part 63, subpart VVVVVV 

(74 FR 56008). Included in the final rule 

was a new provision that stated ‘‘[a]ny 

source that was a major source and 

installed a control device on a CMPU 1

after November 15, 1990, and, as a 

result, became an area source under 40 

CFR part 63 is required to obtain a 

permit under 40 CFR part 70 or 40 CFR 

part 71.’’ See 40 CFR 63.11494(e). 

On February 12, 2010, the American 

Chemistry Council and the Society of 

Chemical Manufacturers and Affiliates 

(collectively referred to as ‘‘Petitioners’’) 

sought reconsideration of six provisions 

in the final rule, including the provision 

requiring certain sources to obtain a title 

V permit. On June 15, 2010, EPA 

notified Petitioners that the Agency 

intended to initiate the reconsideration 

process. EPA also separately notified 

Petitioners that the provision requiring 

certain sources to obtain a title V permit 

was among the provisions for which 

EPA would grant reconsideration. 

By letter dated October 28, 2010, 

Petitioners requested a stay of the 

requirement to comply with the title V 

permit program, specifically the 

requirement to submit a title V permit 

application, pending completion of the 

reconsideration process. Petitioners 

stated in their letter that they were 

requesting the stay because EPA has yet 

to initiate the reconsideration process, 

and, ‘‘under one interpretation of EPA’s 

[40 CFR part 70 and 40 CFR part 71] 

regulations, existing sources must file 

Title V permit applications [by] October 

29, 2010.’’ Petitioners maintained that it 

would be unreasonable and inequitable 

to require facilities to prepare and 

submit title V applications at the same 

time that EPA is reconsidering the 

requirement to obtain a title V permit. 

On December 14, 2010, we issued a 

90-day stay of the requirement for 

certain sources to obtain a title V 

permit, and we concurrently proposed 

extending the stay beyond the 90-day 

period until the reconsideration process 

is completed (75 FR 77760 and 75 FR 

77799). As explained in the proposal 

notice, we proposed the stay because 

facilities had no chance to comment on 

this new requirement in the final rule, 

and because we are reconsidering the 

title V permitting requirement. 

Furthermore, because we cannot prejudge the outcome of the 

reconsideration process, we stated that 

a limited stay during the duration of the 

administrative reconsideration process 

is appropriate so that sources are not 

incurring the cost associated with 

applying for a title V permit in advance 

of our final decision on the issue. 

II. What action is EPA taking? 

We are issuing a stay of the provision 

in 40 CFR 63.11494(e) that requires 

‘‘[a]ny source that was a major source 

and installed a control device on a 

CMPU after November 15, 1990, and, as 

a result, became an area source under 

40 CFR part 63 is required to obtain a 

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