54706 Federal Register / Vol. 76, No. 171 / Friday, September 2, 2011 / Rules and Regulations 

(d) Effective Date and Enforcement 

Periods. This rule is effective from 6 

a.m. on October 8, 2011 through 11:59 

a.m. on October 9, 2011. This rule will 

be enforced daily from 6 a.m. until 

11:59 a.m. on October 8, 2011 through 

October 9, 2011. 

Dated: August 22, 2011. 

M.F. White, 

Captain, U.S. Coast Guard, Captain of the 

Port Charleston. 

[FR Doc. 2011–22491 Filed 9–1–11; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2010–0856; FRL–9459–1] 

Approval and Promulgation of Air 

Quality Implementation Plans; Virginia; 

Permits for Major Stationary Sources 

and Major Modifications Locating in 

Prevention of Significant Deterioration 

Areas 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving a State 

Implementation Plan (SIP) revision 

submitted by the Commonwealth of 

Virginia. The revision establishes the 

addition of nitrogen oxides (NOX) as a 

precursor to ozone in Virginia for 

permits of major stationary sources or 

major modifications locating in 

Prevention of Significant Deterioration 

(PSD) areas. EPA is approving the 

addition of NOX as a precursor to ozone 

based on the Virginia regulations dated 

December 31, 2008. A previous PSD 

program approval of Virginia’s Chapter 

80, Article 8 regulations was provided 

to the Commonwealth as a ‘‘limited 

approval’’ for reasons that will not deny 

this action as being fully approved. This 

revision to add NOX as a precursor to 

ozone is in accordance with the 

requirements of the Clean Air Act 

(CAA). 

DATES: This final rule is effective on 

October 3, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R03–OAR–2010–0856. All 

documents in the docket are listed in 

the http://www.regulations.gov Web 

site. Although listed in the electronic 

docket, some information is not publicly 

available, i.e., confidential business 

information (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 through 

http://www.regulations.gov or in hard 

copy for public inspection 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: 

Sharon McCauley, (215) 814–3376, or by 

e-mail at mccauley.sharon@epa.gov. 

SUPPLEMENTARY INFORMATION:

I. Background 

Throughout this document, whenever 

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

EPA. On May 23, 2011 (76 FR 29686), 

EPA published a notice of proposed 

rulemaking (NPR) for the 

Commonwealth of Virginia. The NPR 

proposed approval of including NOX as 

a precursor to ozone for permitting and 

the construction of new major stationary 

sources and the significant modification 

of existing major stationary sources of 

air pollutants in areas designated 

attainment or non-classifiable for the 

National Ambient Air Quality Standards 

(NAAQS) in Virginia. The formal SIP 

revision was submitted by Virginia on 

June 7, 2010. 

This approval establishes NOX as a 

precursor to ozone, in addition to 

volatile organic compounds (VOC), in 

the definitions of ‘‘major modification’’, 

‘‘major stationary source’’, ‘‘regulated 

New Source Review (NSR) pollutant’’ 

and ‘‘significant’’ and to the list of 

exempted facilities. Virginia’s 

regulations adding NOX as a precursor 

to ozone establishes a construction 

permit program consistent with the 

Federal CAA’s Title I program and 

implementing regulations at 40 CFR 

51.166, ‘‘Prevention of Significant 

Deterioration of Air Quality.’’ VADEQ’s 

regulation 9VAC5 Chapter 80, Article 8 

is part of the SIP and sets forth the 

criteria and procedures for major 

stationary sources to obtain a permit to 

construct, operate and/or modify a 

major stationary source. 

Previously, EPA had issued a ‘‘limited 

approval’’ of Virginia’s PSD regulations 

(9VAC5 Chapter 80, Article 8) for 

reasons that will not deny this action as 

being fully approved. The ‘‘limited 

approval’’ issues can be found in the 

Technical Support Document contained 

in this Docket or in the Federal Register 

action dated October 22, 2008 (73 FR 

62897). 

II. Summary of SIP Revision 

Our review of Virginia’s SIP revision 

request indicates that our approval of 

this SIP revision is warranted. These 

changes to the Virginia program are 

found in the Virginia Code at 9VAC5 

Chapter 80, Article 8, Permits for Major 

Stationary Sources and Major 

Modifications Locating in Prevention of 

Significant Deterioration Areas. EPA is 

approving NOX as a precursor to ozone 

in addition to VOCs in the definitions 

of ‘‘major modification’’, ‘‘major 

stationary source’’, ‘‘regulated New 

Source Review (NSR) pollutant’’ and 

‘‘significant’’ and to the list of exempted 

facilities as a revision to the Virginia 

SIP. 

This SIP approval for 9VAC5–80– 

1615 and 9VAC5–80–1695 addresses 

regulatory changes needed to be 

equivalent to the CAA’s part C PSD 

permit program. It also corrects 

deficiencies identified by EPA in the 

March 27, 2008 Federal Register action 

entitled, ‘‘Completeness Findings for 

Section 110(a) State implementation 

Plans for the 8-hour Ozone National 

Ambient Air Quality Standards (1997 

Ozone NAAQS)’’ (73 FR 16205). EPA’s 

approval of this SIP submission 

addresses Virginia’s compliance with 

the portion of CAA Section 110(a)(2)(C) 

& (J) relating to the CAA’s part C PSD 

permit program for the 1997 Ozone 

NAAQS, because this approval will 

allow regulating NOX as a precursor to 

ozone in Virginia’s SIP in accordance 

with the Federal Register action dated 

November 29, 2005 (70 FR 71612) that 

finalized NOX as a precursor for ozone 

regulations set forth at 40 CFR 51.166 

and in 40 CFR 52.21. 

We are fully approving these 

regulatory citation changes which 

became effective in Virginia on 

December 31, 2008, as referenced here 

in this document and in the Virginia 

Code of Regulations 9VAC5 Chapter 80, 

Article 8, sections 5–80–1615 and 5–80– 

1695 which establish NOX as a 

precursor to ozone, into the Virginia 

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 


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Federal Register / Vol. 76, No. 171 / Friday, September 2, 2011 / Rules and Regulations 54707 

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 PSD 

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. 

Other specific requirements of NOX as 

a precursor to ozone and the rationale 

for EPA’s proposed action are explained 

in the NPR and will not be restated here. 

No public comments were received on 

the NPR. 

III. Final Action 

EPA is approving the addition of NOX

as a precursor to ozone for PSD as a 

revision to the Virginia SIP. 

IV. 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 November 1, 2011. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 


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54708 Federal Register / Vol. 76, No. 171 / Friday, September 2, 2011 / Rules and Regulations 

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. This action to 

approve NOX as a precursor to ozone in 

Virginia 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, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Reporting and 

recordkeeping requirements. 

Dated: August 22, 2011. 

W.C. Early, 

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 entries 

for Sections 5–80–1615 and 5–80–1695 

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 80 Permits for Stationary Sources 

*******

Article 8 Permits for Major Stationary Sources and Major Modifications Locating in Prevention of Significant Deterioration (PSD) Areas 

*******

5–80–1615 .......................... Definitions .......................... 12/31/08 9/2/11 [Insert page number 

where the document begins].

Adds NOX as a precursor to ozone. 

Limited approval remains in effect. 

* * * * * * * 

5–80–1695 .......................... Exemptions ........................ 12/31/08 9/2/11 [Insert page number 

where the document begins].

Adds NOX as a precursor to ozone. 

Limited approval remains in effect. 

* * * * * * * 

* * * * * 

[FR Doc. 2011–22448 Filed 9–1–11; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 64 

[Docket ID FEMA–2011–0002; Internal 

Agency Docket No. FEMA–8193] 

Suspension of Community Eligibility 

AGENCY: Federal Emergency 

Management Agency, DHS. 

ACTION: Final rule. 

SUMMARY: This rule identifies 

communities, where the sale of flood 

insurance has been authorized under 

the National Flood Insurance Program 

(NFIP), that are scheduled for 

suspension on the effective dates listed 

within this rule because of 

noncompliance with the floodplain 

management requirements of the 

program. If the Federal Emergency 

Management Agency (FEMA) receives 

documentation that the community has 

adopted the required floodplain 

management measures prior to the 

effective suspension date given in this 

rule, the suspension will not occur and 

a notice of this will be provided by 

publication in the Federal Register on a 

subsequent date. 

DATES: Effective Dates: The effective 

date of each community’s scheduled 

suspension is the third date (‘‘Susp.’’) 

listed in the third column of the 

following tables. 

FOR FURTHER INFORMATION CONTACT: If 

you want to determine whether a 

particular community was suspended 

on the suspension date or for further 

information, contact David Stearrett, 

Mitigation Directorate, Federal 

Emergency Management Agency, 500 C 

Street, SW., Washington, DC 20472, 

(202) 646–2953. 

SUPPLEMENTARY INFORMATION: The NFIP 

enables property owners to purchase 

flood insurance which is generally not 

otherwise available. In return, 

communities agree to adopt and 

administer local floodplain management 

aimed at protecting lives and new 

construction from future flooding. 

Section 1315 of the National Flood 

Insurance Act of 1968, as amended, 42 

U.S.C. 4022, prohibits flood insurance 

coverage as authorized under the NFIP, 

42 U.S.C. 4001 et seq.; unless an 

appropriate public body adopts 

adequate floodplain management 

measures with effective enforcement 

measures. The communities listed in 

this document no longer meet that 

statutory requirement for compliance 

with program regulations, 44 CFR part 

59. Accordingly, the communities will 

be suspended on the effective date in 

the third column. As of that date, flood 

insurance will no longer be available in 

the community. However, some of these 

communities may adopt and submit the 

required documentation of legally 

enforceable floodplain management 

measures after this rule is published but 

prior to the actual suspension date. 

These communities will not be 


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