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[Federal Register Volume 76, Number 120 (Wednesday, June 22, 2011)]
[Rules and Regulations]
[Pages 36326-36329]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-15455]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2011-0411; FRL-9321-5]

Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Adoption of the Revised Nitrogen Dioxide Standard

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 new 1-hour nitrogen dioxide (NO2) standard at a 
level of 100 parts per billion (ppb) and update the list of Federal 
documents incorporated by reference. The Commonwealth of Virginia's SIP 
revisions for the national ambient air quality standards (NAAQS) for 
NO2 are consistent with the Federal NO2 
standards. This action is being taken under the Clean Air Act (CAA).

DATES: This rule is effective on August 22, 2011 without further 
notice, unless EPA receives adverse written comment by July 22, 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.

[[Page 36327]]

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2011-0411 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: fernandez.cristina@epa.gov.
    C. Mail: EPA-R03-OAR-2011-0411, Cristina Fernandez, 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-
2011-0411. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an anonymous access system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in http://www.regulations.gov or in hard copy during normal business hours at the 
Air Protection Division, U.S. Environmental Protection Agency, Region 
III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the 
State submittal are available at the Virginia Department of 
Environmental Quality, 629 East Main Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Gregory Becoat, (215) 814-2036, or by 
e-mail at becoat.gregory@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    On March 4, 2011, the Commonwealth of Virginia submitted a formal 
revision to its SIP. The SIP revision consists of amendments pertaining 
to the ambient air quality standards for NO2 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 NO2 were necessary to protect 
public health. EPA revised the level of the primary standard by setting 
a new 1-hour NO2 standard at a level of 100 parts per 
billion (ppb) in order to protect against adverse health effects 
associated with short-term exposure to NO2. EPA also 
retained the current annual average NO2 standard of 53 ppb 
in order to protect against adverse health effects associated with 
long-term exposure to NO2. EPA promulgated the more 
stringent primary NAAQS for NO2 on February 9, 2010 (75 FR 
6474).

II. Summary of SIP Revision

    On March 4, 2011, the Commonwealth of Virginia submitted a formal 
revision to its SIP. The SIP revision consists of amendments to the 
Commonwealth's existing regulations in order to update the list of 
appendices under documents incorporated by reference and to add the new 
primary 1-hour standard for NO2. The Commonwealth of 
Virginia's revision incorporates the revised NO2 standard 
into the Code of Virginia (9VAC5 Chapter 30). This SIP revision amends 
regulation 5-30-70, ``Oxides of nitrogen with nitrogen dioxide as the 
indicator'' in order to specify that NO2 is the indicator 
for oxides of nitrogen; limit the 53 ppb standard to the annual primary 
standard and change the unit of measurement from annual arithmetic mean 
concentration to annual average concentration; add the new primary 1-
hour standard of 100 ppb; specify reference methods used to measure the 
standard; and specify how the primary annual and 1-hour standard and 
the secondary standard are attained.
    In addition, this SIP revision amends regulation 5-20-21, 
``Documents incorporated by reference'' by adding the new Appendix S to 
the list of Federal documents incorporated by reference. Appendix S was 
added to 40 CFR part 50 when the revised NO2 standard was 
promulgated on February 9, 2010 (75 FR 6474).

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. Virginias 
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

[[Page 36328]]

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 Commonwealth of Virginia's SIP revision that 
adds the new 1-hour NO2 NAAQS and updates the list of 
Federal 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 August 22, 2011 without further notice unless EPA 
receives adverse comment by July 22, 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.

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. 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 August 22, 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

[[Page 36329]]

pertaining to the Commonwealth of Virginia's adoption of the revised 
NO2 standard of 100 ppb 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, Reporting and recordkeeping requirements.

    Dated: June 6, 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 entry for Section 5-30-70. The table in paragraph (e) is amended by 
adding an entry for ``Documents Incorporated by Reference'' after the 
tenth existing entry for ``Documents Incorporated by Reference.'' The 
amendments read as follows:

Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

                                                     EPA--Approved Virginia Regulations and Statutes
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                                                                State
          State citation                Title/subject      effective date             EPA approval date              Explanation [former SIP citation]
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                                                                      * * * * * * *
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                                              9 VAC 5, Chapter 30 Ambient Air Quality Standards [Part III]
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                                                                      * * * * * * *
5-30-70...........................  Oxides of nitrogen            8/18/10  6/22/11 [Insert page number where the   Sections A., D., and E. are modified.
                                     dioxide as the                         document begins].                       Sections B., C., F., and G. are
                                     indicator.                                                                     added.
 
                                                                      * * * * * * *
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* * * * *
    (e) * * *

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    Name of non-regulatory SIP      Applicable geographic       State
             revision                        area          submittal date             EPA approval date                    Additional explanation
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                                                                      * * * * * * *
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Documents Incorporated by           Statewide............         3/14/11  6/22/11 [Insert page number where the   Added section.
 Reference (9 VAC 5-20-21, Section                                          document begins].
 E.1.a.(1)(s)).
 
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[FR Doc. 2011-15455 Filed 6-21-11; 8:45 am]
BILLING CODE 6560-50-P
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