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[Federal Register Volume 77, Number 81 (Thursday, April 26, 2012)]
[Rules and Regulations]
[Pages 24843-24845]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-9973]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2012-0024; FRL-9664-4]

Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Removal of Transcontinental Gas Pipe Line Corporation Permit 
From State Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve a revision to the 
Virginia State Implementation Plan (SIP). The revision pertains to a 
Transcontinental Gas Pipe Line Corporation (Transco) operating permit 
that EPA approved into the Virginia SIP to meet nitrogen oxides 
(NOX) reduction requirements for large stationary internal 
combustion engines under the NOX SIP Call. Transco Station 
175 has permanently shut down, and this revision removes the permit 
from the Virginia SIP. EPA is approving this revision in accordance 
with the requirements of the Clean Air Act (CAA).

DATES: This rule is effective on June 25, 2012 without further notice, 
unless EPA receives adverse written comment by May 29, 2012. If EPA 
receives such comments, it will publish a timely withdrawal of the 
direct final rule in the Federal Register and inform the public that 
the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2012-0024 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. Email: fernandez.cristina@epa.gov.
    C. Mail: EPA-R03-OAR-2012-0024, Cristina Fernandez, Associate 
Director, Office of Air Quality Planning, Mailcode 3AP30, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2012-0024. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov, your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy during normal business hours at the Air Protection 
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch 
Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal 
are available at the Virginia Department of Environmental Quality, 629 
East Main Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Marilyn Powers, (215) 814-2308, or by 
email at powers.marilyn@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

I. Background

    EPA issued the NOX SIP Call (63 FR 57356, October 27, 
1998) to require 22 eastern states and the District of Columbia to 
reduce specified amounts of one of the main precursors of ground-level 
ozone, NOX, in order to reduce interstate ozone transport. 
EPA found that the sources in these states emit NOX in 
amounts that contribute significantly to nonattainment of the 1-hour 
ozone national ambient air quality standard (NAAQS) in downwind states. 
In the NOX SIP Call, the amount of reductions required by 
states were calculated based on application of available, highly cost-
effective controls on certain source categories of NOX. 
These source categories included large fossil fuel-fired electric 
generating units (EGUs) serving a generator with a capacity greater 
than 25 megawatts (MWe), fossil fuel-fired non-EGUs (such as large

[[Page 24844]]

industrial boilers with a capacity greater than 250 million BTUs per 
hour (MMBtu/hr), large stationary internal combustion engines, and 
large cement kilns.
    The NOX SIP Call was challenged by a number of state, 
industry, and labor groups. On March 3, 2000, the United States Court 
of Appeals for the District of Columbia Circuit (D.C. Circuit) issued 
its decision on the NOX SIP Call. Michigan v. EPA, 213 F.3rd 
663 (D.C. Dir. 2000). While the D.C. Circuit ruled largely in favor of 
EPA in support of its requirements under the 1-hour ozone NAAQS, it 
also ruled, in part, against EPA on certain issues. The portions of the 
NOX SIP Call that were upheld by the Court were termed 
``Phase I'' of the rule, and applies to EGUs and non-EGUs. EPA's 
response to the remanded portions of the NOX SIP Call (with 
several exceptions) was finalized in its April 21, 2004 (69 FR 21604) 
rulemaking action entitled, ``Interstate Ozone Transport: Response to 
Court Decisions on the NOX SIP Call, NOX SIP Call 
Technical Amendments, and Section 126 Rules,'' termed ``Phase II'' of 
the rule. Phase II applies to large stationary internal combustion 
engines and large cement kilns.
    EPA approved Virginia's Phase I NOX SIP Call submission 
in a rulemaking dated July 8, 2003 (68 FR 40520). On October 30, 2008 
(73 FR 64551), EPA approved Virginia's Phase II submission. A 
discussion of the relevant portions of the April 21, 2004 rulemaking 
that pertains to Virginia's requirements under Phase II may be found in 
the docket for EPA's October 30, 2008 rulemaking (See Docket  
EPA-R03-OAR-2007-0382). In that rulemaking, EPA approved into the 
Virginia SIP the federally enforceable state operating permits for four 
Transco internal combustion engines to address the Commonwealth's 
emission reduction requirements for Phase II of the NOX SIP 
Call. Transco Station 175 located in Fluvanna County, Virginia was one 
of the sources included in that rulemaking. To meet the requirement for 
NOX emissions reductions of 82 percent from large internal 
combustion engines, the operating permit capped NOX 
emissions from Station 175 at 195.43 tons per ozone season. The 
operating permit requirements for the engines included NOX 
emission rate limits and limits on hours of operation during the ozone 
season to achieve the required emission reductions.

II. Summary of SIP Revision

    On November 8, 2011, the Commonwealth of Virginia Department of 
Environmental Quality (VADEQ) submitted a formal revision to its SIP. 
The SIP revision consists of a request by the Commonwealth to remove 
the permit for Transco Station 175 from the Virginia SIP. On July 26, 
2011, Transco and VADEQ signed a mutual determination of permanent 
shutdown for the four large stationary natural gas-fired spark ignited, 
reciprocating internal combustion engines located at Transco Station 
175. The submission includes a copy of the signed determination, which 
required that operation of the engines cease upon signature of the 
document, and that any future operation of the engines must be in 
accordance with Virginia's Prevention of Significant Deterioration 
(PSD) permit program pursuant to 9VAC5 chapter 80. Should the engines 
resume operation in the future, VADEQ may be required at that time to 
revise its SIP as appropriate.

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

    In 1995, Virginia adopted legislation that provides, subject to 
certain conditions, for an environmental assessment (audit) 
``privilege'' for voluntary compliance evaluations performed by a 
regulated entity. The legislation further addresses the relative burden 
of proof for parties either asserting the privilege or seeking 
disclosure of documents for which the privilege is claimed. Virginia's 
legislation also provides, subject to certain conditions, for a penalty 
waiver for violations of environmental laws when a regulated entity 
discovers such violations pursuant to a voluntary compliance evaluation 
and voluntarily discloses such violations to the Commonwealth and takes 
prompt and appropriate measures to remedy the violations. Virginia's 
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and 
information about the content of those documents that are the product 
of a voluntary environmental assessment. The Privilege Law does not 
extend to documents or information (1) that are generated or developed 
before the commencement of a voluntary environmental assessment; (2) 
that are prepared independently of the assessment process; (3) that 
demonstrate a clear, imminent and substantial danger to the public 
health or environment; or (4) that are required by law.
    On January 12, 1998, the Commonwealth of Virginia Office of the 
Attorney General provided a legal opinion that states that the 
Privilege Law, Va. Code Sec.  10.1-1198, precludes granting a privilege 
to documents and information ``required by law,'' including documents 
and information ``required by Federal law to maintain program 
delegation, authorization or approval,'' since Virginia must ``enforce 
Federally authorized environmental programs in a manner that is no less 
stringent than their Federal counterparts. * * *'' The opinion 
concludes that ``[r]egarding Sec.  10.1-1198, therefore, documents or 
other information needed for civil or criminal enforcement under one of 
these programs could not be privileged because such documents and 
information are essential to pursuing enforcement in a manner required 
by Federal law to maintain program delegation, authorization or 
approval.'' Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides 
that ``[t]o the extent consistent with requirements imposed by Federal 
law,'' any person making a voluntary disclosure of information to a 
state agency regarding a violation of an environmental statute, 
regulation, permit, or administrative order is granted immunity from 
administrative or civil penalty. The Attorney General's January 12, 
1998 opinion states that the quoted language renders this statute 
inapplicable to enforcement of any Federally authorized programs, since 
``no immunity could be afforded from administrative, civil, or criminal 
penalties because granting such immunity would not be consistent with 
Federal law, which is one of the criteria for immunity.''
    Therefore, EPA has determined that Virginia's Privilege and 
Immunity statutes will not preclude the Commonwealth from enforcing its 
program consistent with the Federal requirements. In any event, because 
EPA has also determined that a state audit privilege and immunity law 
can affect only state enforcement and cannot have any impact on Federal 
enforcement authorities, EPA may at any time invoke its authority under 
the CAA, including, for example, sections 113, 167, 205, 211 or 213, to 
enforce the requirements or prohibitions of the state plan, 
independently of any state enforcement effort. In addition, citizen 
enforcement under section 304 of the CAA is likewise unaffected by 
this, or any, state audit privilege or immunity law.

IV. Final Action

    EPA is approving the November 8, 2011 submittal from VADEQ that 
removes the operating permit for Transco Station 175 from the Virginia 
SIP. EPA is publishing this rule without

[[Page 24845]]

prior proposal because the Agency views this as a noncontroversial 
amendment and anticipates no adverse comment. However, in the 
``Proposed Rules'' section of today's Federal Register, EPA is 
publishing a separate document that will serve as the proposal to 
approve the SIP revision if adverse comments are filed. This rule will 
be effective on June 25, 2012 without further notice unless EPA 
receives adverse comment by May 29, 2012. If EPA receives adverse 
comment, EPA will publish a timely withdrawal in the Federal Register 
informing the public that the rule will not take effect. EPA will 
address all public comments in a subsequent final rule based on the 
proposed rule. EPA will not institute a second comment period on this 
action. Any parties interested in commenting must do so at this time.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. Section 804, however, exempts from section 801 the 
following types of rules: Rules of particular applicability; rules 
relating to agency management or personnel; and rules of agency 
organization, procedure, or practice that do not substantially affect 
the rights or obligations of non-agency parties. 5 U.S.C. 804(3). 
Because this is a rule of particular applicability, EPA is not required 
to submit a rule report regarding this action under section 801.

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by June 25, 2012. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. Parties with objections to this direct final rule are 
encouraged to file a comment in response to the parallel notice of 
proposed rulemaking for this action published in the proposed rules 
section of today's Federal Register, rather than file an immediate 
petition for judicial review of this direct final rule, so that EPA can 
withdraw this direct final rule and address the comment in the proposed 
rulemaking.
    This action to remove the Transco Station 175 operating permit from 
the Virginia SIP may not be challenged later in proceedings to enforce 
its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Ozone.

    Dated: April 12, 2012.
W.C. Early,
Acting Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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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

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2. In Sec.  52.2420, the table in paragraph (d) is amended by removing 
the entry for Transcontinental Pipeline Station 175.

[FR Doc. 2012-9973 Filed 4-25-12; 8:45 am]
BILLING CODE 6560-50-P
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