36326 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Rules and Regulations 

on appeal or in support of exceptions; 

and 

(4) A concise argument clearly setting 

forth points of fact and of law relied 

upon in support of or in opposition to 

each exception taken, together with 

specific references to the parts of the 

record and the legal or other authorities 

relied upon. 

(f) Unless permission is granted by the 

Judicial Officer no brief shall exceed 50 

printed pages double spaced, using 12 

point type. 

(g) The Judicial Officer will extend 

the time to file briefs only upon written 

application for good cause shown. If the 

appeal brief or brief in support of 

exceptions is not filed within the time 

prescribed, the defaulting party may be 

deemed to have abandoned the appeal 

or waived the exceptions, and the initial 

or tentative decision shall become the 

final agency decision. 

§ 952.26 Judicial Officer. 

(a) The Judicial Officer is authorized: 

(1) To act as presiding officer; 

(2) To render tentative decisions; 

(3) To render final agency decisions; 

(4) To issue Postal Service orders for 

the Postmaster General; 

(5) To refer the record in any 

proceeding to the Postmaster General or 

the Deputy Postmaster General for final 

agency decision; 

(6) To remand a case to the presiding 

officer for consideration; and, 

(7) To revise or amend these rules of 

practice. 

(b) In determining appeals from initial 

decisions or exceptions to tentative 

decisions, the entire official record will 

be considered before a final agency 

decision is rendered. Before rendering a 

final agency decision, the Judicial 

Officer may order the hearing reopened 

for the presentation of additional 

evidence by the parties. 

§ 952.27 Motion for reconsideration. 

A party may file a motion for 

reconsideration of a final agency 

decision within 10 days after receiving 

it or within such longer period as the 

Judicial Officer may order. Each motion 

for reconsideration shall be 

accompanied by a brief clearly setting 

forth the points of fact and of law relied 

upon in support of said motion. 

§ 952.28 Orders. 

(a) If an order is issued which 

prohibits delivery of mail to Respondent 

it shall be incorporated in the record of 

the proceeding. The Recorder shall 

cause notice of the order to be published 

in the Postal Bulletin and cause the 

order to be transmitted to such 

postmasters and other officers and 

employees of the Postal Service as may 

be required to place the order into 

effect. 

(b) If an order is issued which 

requires Respondent to cease and desist 

from using certain representations for 

the purpose of obtaining money or 

property through the mail, it shall be 

incorporated in the record of the 

proceeding and a copy thereof shall be 

served upon Respondent or his or her or 

its agent by certified mail or by personal 

service, or if no person can be found to 

accept service, service shall be 

accomplished by ordinary mail to the 

last known address of Respondent or his 

or her or its agent. If service is not 

accomplished by certified mail, a 

statement, showing the time and place 

of delivery, signed by the postal 

employee who delivered the order, shall 

be forwarded to the Recorder. 

§ 952.29 Modification or revocation of 

orders. 

A party against which an order or 

orders have been issued may file an 

application for modification or 

revocation thereof. The Recorder shall 

transmit a copy of the application to the 

Chief Postal Inspector or his or her 

designee, who shall file a written reply 

within 10 days after filing or such other 

period as the Judicial Officer may order. 

A copy of the reply shall be sent to the 

applicant by the Recorder. Thereafter an 

order granting or denying such 

application will be issued by the 

Judicial Officer. 

§ 952.30 Supplemental orders. 

When the Chief Postal Inspector or his 

or her designee, or the Chief Postal 

Inspector’s designated representative 

shall have reason to believe that a 

person is evading or attempting to evade 

the provisions of any such orders by 

conducting the same or a similar 

enterprise under a different name or at 

a different address, he or she may file 

a petition with accompanying evidence 

setting forth the alleged evasion or 

attempted evasion and requesting the 

issuance of a supplemental order or 

orders against the name or names 

allegedly used. Notice shall then be 

given by the Recorder to the person that 

the order has been requested and that an 

answer may be filed within 10 days of 

the notice. The Judicial Officer, for good 

cause shown, may hold a hearing to 

consider the issues in controversy, and 

shall, in any event, render a final 

decision granting or denying the 

supplemental order or orders. 

§ 952.31 Computation of time. 

A designated period of time under 

these rules excludes the day the period 

begins, and includes the last day of the 

period unless the last day is a Saturday, 

Sunday, or legal holiday, in which event 

the period runs until the close of 

business on the next business day. 

§ 952.32 Official record. 

The hearing transcript together with 

all pleadings, orders, exhibits, briefs and 

other documents filed in the proceeding 

shall constitute the official record of the 

proceeding. 

§ 952.33 Public information. 

The Librarian of the Postal Service 

maintains for public inspection in the 

Library copies of all initial, tentative 

and final agency decisions and orders. 

The Recorder maintains the complete 

official record of every proceeding. 

§ 952.34 Ex parte communications. 

The provisions of 5 U.S.C. 551(14), 

556(d), and 557(d) prohibiting ex parte 

communications apply to proceedings 

under these rules of practice. 

Stanley F. Mires, 

Chief Counsel, Legislative. 

[FR Doc. 2011–15518 Filed 6–21–11; 8:45 am] 

BILLING CODE 7710–12–P 

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. 

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. 


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Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Rules and Regulations 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 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–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 email 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 


jlentini on DSK4TPTVN1PROD with RULES
36328 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Rules and Regulations 

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 

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 


jlentini on DSK4TPTVN1PROD with RULES
Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Rules and Regulations 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] 

■ 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 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: 

§ 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 30 Ambient Air Quality Standards [Part III] 

*******

5-30-70 ........................................ Oxides of nitrogen dioxide as the 

indicator.

8/18/10 6/22/11 [Insert page number where the document 

begins].

Sections A., D., and E. 

are modified. Sections 

B., C., F., and G. are 

added. 

* * * * * * * 

* * * * * (e) * * * 

Name of non-regulatory SIP revision Applicable geographic area State submittal 

date EPA approval date Additional explanation 

*******

Documents Incorporated by Reference (9 VAC 5-20-21, Section E.1.a.(1)(s)).Statewide ..................................... 3/14/11 6/22/11 [Insert page number where the document 

begins].

Added section. 

* * * * * * * 

[FR Doc. 2011–15455 Filed 6–21–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R10–OAR–2010–1072; FRL–9321–4] 

Approval and Promulgation of 

Implementation Plans; State of Idaho; 

Regional Haze State Implementation 

Plan and Interstate Transport Plan 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving portions of 

a State Implementation Plan (SIP) 

revision submitted by the State of Idaho 

on October 25, 2010, as meeting the 

requirements of Clean Air Act (CAA) 

section 110(a)(2)(D)(i)(II) as it applies to 

visibility for the 1997 8-hour ozone and 

1997 particulate matter (PM2.5) National 

Ambient Air Quality Standards 

(NAAQS). EPA is also approving 

portions of the revision as meeting 

certain requirements of the regional 

haze program, including the 

requirements for best available retrofit 

technology (BART). 

DATES: Effective Date: This final rule is 

effective July 22, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R10–OAR–2010–1072. 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 

(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 at the State and Tribal Air 

Programs Unit, Office of Air Waste and 

Toxics, EPA Region 10, 1200 Sixth 

Avenue, Seattle, WA, 98101. EPA 

requests that if at all possible, you 

contact the individual listed in the FOR

FURTHER INFORMATION CONTACT section to 

view the hard copy of the docket. You 


jlentini on DSK4TPTVN1PROD with RULES