11738 Federal Register / Vol. 75, No. 48 / Friday, March 12, 2010 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2009–0599; FRL–9125–2] 

Approval and Promulgation of Air 

Quality Implementation Plans; Virginia; 

Revision to Clean Air Interstate Rule 

Sulfur Dioxide Trading Program 

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 pertains to the 

timing for the first phase of the sulfur 

dioxide (SO2) trading budget under the 

Commonwealth’s approved regulations 

that implement the requirements of the 

Clean Air Interstate Rule (CAIR). EPA is 

approving this revision to change the 

start date of Virginia’s CAIR SO2 trading 

budget from the control period in 2009 

to the control period in 2010 in 

accordance with the requirements of the 

Clean Air Act (CAA). 

DATES: Effective Date: This final rule is 

effective on April 12, 2010. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R03–OAR—2009–0599. 

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: 

Marilyn Powers, (215) 814–2308, or by 

e-mail at powers.marilyn@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Throughout this document, whenever 

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

EPA. 

On January 14, 2009, the 

Commonwealth of Virginia submitted a 

formal revision to its SIP. The SIP 

revision consists of a change in timing 

for the first phase of the 

Commonwealth’s approved CAIR SO2

trading budget. The start for the first 

phase of the SO2 trading budget is 

changed from the control period in 2009 

to the control period in 2010. 

On October 22, 2009 (74 FR 54485), 

EPA published a Direct Final Rule 

(DFRN) to approve the January 14, 2009 

SIP revision submitted by the 

Commonwealth of Virginia. On October 

26, 2009, EPA received a comment, and 

on November 23, 2009 (74 FR 61037), 

EPA withdrew the DFRN and noted that 

the comment would be addressed in a 

final action based on the Notice of 

Proposed Rulemaking (NPR) published 

on October 22, 2009 (74 FR 54534). The 

comment period closed on November 

23, 2009. No additional comments were 

received. 

Comment: An anonymous commenter 

submitted the comment: ‘‘I am not sure 

about this rule.’’ 

Response: The comment, while 

vaguely expressing a general uncertainty 

about the rule, does not identify any 

particular defect in the rule substance or 

adoption. Importantly, the comment 

does not oppose EPA’s proposed full 

approval of the rule. EPA therefore 

believes that no additional response is 

necessary. 

II. Summary of SIP Revision 

Virginia regulation 9 VAC 5–140– 

3400 originally required that the 

Commonwealth’s CAIR SO2 budget 

applied starting with the control period 

in 2009. However, the EPAadministered CAIR SO2 trading 

programs under States’ CAIR SIPs and 

under the CAIR FIP start on January 1, 

2010, and the associated CAIR SO2

trading budgets apply starting with the 

2010 control period. To make the 

Virginia CAIR SO2 trading program 

requirements consistent with the 

regional trading program requirements, 

Virginia revised regulation 9 VAC–5– 

140–3400 to change this date from 2009 

to 2010. In the SIP revision, Virginia 

explains that this change corrects a 

technical error in its approved CAIR 

SIP. The SIP revision also includes a 

clarifying revision to the description of 

the State’s SO2 budget. 

III. General Information Pertaining to 

SIP Submittals from the 

Commonwealth of Virgina 

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 § 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 


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Federal Register / Vol. 75, No. 48 / Friday, March 12, 2010 / Rules and Regulations 11739 

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 

Clean Air Act is likewise unaffected by 

this, or any, State audit privilege or 

immunity law. 

IV. Final Action 

EPA is approving the SIP revision 

submitted by the Commonwealth of 

Virginia on January 14, 2009. The SIP 

revision incorporates a timing change to 

the Commonwealth’s CAIR SO2 trading 

program that make it consistent with the 

regional CAIR SO2 trading program, 

under which SO2 trading budgets apply 

starting in 2010, as well as a clarifying 

revision to the description of the State’s 

SO2 budget. 

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 Clean Air Act; 

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 Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by May 11, 2010. 

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. 

This action to approve a revision to 

Virginia’s CAIR SO2 Trading Program 

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, Sulfur oxides. 

Dated: February 18, 2010. 

W.C. Early, 

Acting Regional Administrator, EPA 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 adding a heading to 

the table, revising the heading for 9 VAC 

5, Chapter 140, and the entry 5–140– 

3400 to read as follows: 

§ 52.2420 Identification of plan. 

* * * * * 

(c) * * * 


jlentini on DSKJ8SOYB1PROD with RULES
11740 Federal Register / Vol. 75, No. 48 / Friday, March 12, 2010 / Rules and Regulations 

EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES

State citation Title/subject State effective 

date EPA approval date Explanation [former SIP citation] 

* * * * * * * 

29 VAC 5, Chapter 140 Regulations for Emissions Trading Programs 

* * * * * * * 

Part IV SO2 Annual Trading Program 

* * * * * * * 

5–140–3400 ............................ State trading budgets ............ 12/12/07 03/12/10 [Insert page number 

where the document begins].

1. In section title, replace 

‘‘State’’ with ‘‘CAIR SO2 Annual’’. 

2. In paragraph 1, replace 

2009 with 2010. 

* * * * * * * 

* * * * * 

[FR Doc. 2010–5105 Filed 3–11–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 180 

[EPA–HQ–OPP–2009–0127; FRL–8814–5] 

S-Abscisic Acid, (S)-5-(1-hydroxy-2,6,6- 

trimethyl-4-oxo-1-cyclohex-2-enyl)-3- 

methyl-penta-(2Z,4E)-dienoic Acid; 

Amendment to an Exemption from the 

Requirement of a Tolerance 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This regulation amends the 

current temporary exemption from the 

requirement of a tolerance for residues 

of the biochemical pesticide S-Abscisic 

Acid, (S)-5-(1-hydroxy-2,6,6-trimethyl4-oxo-1-cyclohex-2-enyl)-3-methylpenta-(2Z,4E)-dienoic Acid (ABA), to 

make it a permanent exemption from 

the requirement of a tolerance for 

residues of ABA in or on all food 

commodities when applied or used 

preharvest as a plant regulator. Valent 

Biosciences Corporation submitted a 

petition to EPA under the Federal Food, 

Drug, and Cosmetic Act (FFDCA), 

requesting that the Agency amend the 

existing temporary exemption from the 

requirement of a tolerance. This 

regulation eliminates the need to 

establish a maximum permissible level 

for residues of S-Abscisic Acid. 

DATES: This regulation is effective 

March 12, 2010. Objections and requests 

for hearings must be received on or 

before May 11, 2010, and must be filed 

in accordance with the instructions 

provided in 40 CFR part 178 (see also 

Unit I.C. of the SUPPLEMENTARY

INFORMATION). 

ADDRESSES: EPA has established a 

docket for this action under docket 

identification (ID) number EPA–HQ– 

OPP–2009–0127. All documents in the 

docket are listed in the docket index 

available at http://www.regulations.gov. 

Although listed in the index, some 

information is not publicly available, 

e.g., 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 in the electronic docket at 

http://www.regulations.gov, or, if only 

available in hard copy, at the OPP 

Regulatory Public Docket in Rm. S– 

4400, One Potomac Yard (South Bldg.), 

2777 S. Crystal Dr., Arlington, VA. The 

Docket Facility is open from 8:30 a.m. 

to 4 p.m., Monday through Friday, 

excluding legal holidays. The Docket 

Facility telephone number is (703) 305– 

5805. 

FOR FURTHER INFORMATION CONTACT: 

Chris Pfeifer, Biopesticides and 

Pollution Prevention Division (7511P), 

Environmental Protection Agency, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460–0001; telephone number: 

(703) 308–0031; e-mail address: 

pfeifer.chris@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this Action Apply to Me? 

You may be potentially affected by 

this action if you are an agricultural 

producer, food manufacturer, or 

pesticide manufacturer. Potentially 

affected entities may include, but are 

not limited to: 

• Crop production (NAICS code 111). 

• Animal production (NAICS code 

112). 

• Food manufacturing (NAICS code 

311). 

• Pesticide manufacturing (NAICS 

code 32532). 

This listing is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

affected by this action. Other types of 

entities not listed in this unit could also 

be affected. The North American 

Industrial Classification System 

(NAICS) codes have been provided to 

assist you and others in determining 

whether this action might apply to 

certain entities. If you have any 

questions regarding the applicability of 

this action to a particular entity, consult 

the person listed under FOR FURTHER

INFORMATION CONTACT. 

B. How Can I Get Electronic Access to 

Other Related Information? 

You may access a frequently updated 

electronic version of 40 CFR part 180 

through the Government Printing 

Office’s e-CFR site at http:// 

www.gpoaccess.gov/ecfr. 

C. Can I File an Objection or Hearing 

Request? 

Under section 408(g) of FFDCA, 21 

U.S.C. 346a(g), any person may file an 

objection to any aspect of this regulation 


jlentini on DSKJ8SOYB1PROD with RULES