Federal Register / Vol. 76, No. 17 / Wednesday, January 26, 2011 / Rules and Regulations 4537 

* * * * * 

[FR Doc. 2011–1489 Filed 1–25–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2010–0882; FRL–9255–9] 

Approval and Promulgation of Air 

Quality Implementation Plans; Virginia; 

Adoption of the Revised Lead 

Standards and Related Reference 

Conditions, and Update of Appendices 

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 primary and 

secondary lead standards of 0.15 

micrograms per cubic meter (μg/m3), 

related reference conditions, and update 

the list of appendices under ‘‘Documents 

Incorporated by Reference.’’ Virginia’s 

SIP revisions for the national ambient 

air quality standards (NAAQS) for lead 

are consistent with the Federal lead 

standards. This action is being taken 

under the Clean Air Act (CAA). 

DATES: This rule is effective on March 

28, 2011 without further notice, unless 

EPA receives adverse written comment 

by February 25, 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. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2010–0882 by one of the 

following methods: 

A. www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

B. E-mail: powers.marilyn@epa.gov. 

C. Mail: EPA–R03–OAR–2010–0882, 

Marilyn Powers, Acting 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–2010– 

0882. 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 e-mail. The www.regulations.gov 

website 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 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 

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: 

Irene Shandruk, (215) 814–2166, or by 

e-mail at shandruk.irene@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On September 27, 2010, the 

Commonwealth of Virginia submitted a 

formal revision to its SIP. The SIP 

revision consists of revisions pertaining 

to the ambient air quality standards for 

lead and related reference conditions. 

The CAA specifies that EPA must reevaluate 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 

lead were necessary to protect public 

health and welfare. EPA revised the 

level of the primary lead standard to a 

level of 0.15 micrograms per cubic 

meter (μg/m3) to provide increased 

protection for children and other ‘‘at 

risk’’ populations. The secondary 

standard was also revised to a level of 

0.15 μg/m3 to afford increased 

protection for the environment. EPA 

promulgated the more stringent primary 

and secondary NAAQS for lead on 

November 12, 2008 (73 FR 66964). 

II. Summary of SIP Revision 

On September 27, 2010, the 

Commonwealth of Virginia submitted a 

formal revision to its SIP. The SIP 

revision consists of an amendment 

which includes the revised primary and 

secondary ambient air quality standards 

for lead and related reference 

conditions. Virginia’s revision 

incorporates the Federal lead standards 

into the Code of Virginia (9VAC5 

Chapter 30). In addition, the list of 

appendices to 40 CFR Part 51 was 

updated under ‘‘Documents 

Incorporated by Reference’’ (9VAC5–20– 

21). 

The following are the specific sections 

that are being modified or amended: 

• 9VAC5–20–21: Documents 

Incorporated by Reference (modified) 

• 9VAC5–30–15: Reference 

Conditions (modified) 

• 9VAC5–30–80: Lead (amended) 

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 


Emcdonald on DSK2BSOYB1PROD with RULES
4538 Federal Register / Vol. 76, No. 17 / Wednesday, January 26, 2011 / Rules and Regulations 

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 

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 Virginia’s SIP 

revision for the lead NAAQS and related 

reference conditions, as well as the 

updated list of appendices to 40 CFR 

Part 51 under 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 March 28, 2011 without 

further notice unless EPA receives 

adverse comment by February 25, 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. Please note that 

if EPA receives adverse comment on an 

amendment, paragraph, or section of 

this rule and if that provision may be 

severed from the remainder of the rule, 

EPA may adopt as final those provisions 

of the rule that are not the subject of an 

adverse comment. 

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 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 


Emcdonald on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 76, No. 17 / Wednesday, January 26, 2011 / Rules and Regulations 4539 

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 March 28, 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 

pertaining to Virginia’s adoption of the 

revised lead standards of 0.15 μg/m3

and related reference conditions 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, Lead, Reporting and 

recordkeeping requirements. 

Dated: January 5, 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 Section 5–30–15 and 5–30–80. The 

table in paragraph (e) is amended by 

adding an entry for ‘‘Documents 

Incorporated by Reference’’ after the 

ninth 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] 

* * * * * * * 

5–30–15 ................................... Reference conditions .............. 6/24/09 1/26/11 [Insert page number 

where the document begins].

Revised section. 

* * * * * * * 

5–30–80 ................................... Lead ........................................ 6/24/09 1/26/11 [Insert page number 

where the document begins].

Revised paragraphs A. and 

B.; added paragraph C. 

* * * * * * * 

* * * * * (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, 

Sections E.1.a.(1)(q) and 

E.1.a.(1)(r)).

Statewide ................................ 9/27/10 1/26/11 [Insert page number 

where the document begins].

Revised sections. 

* * * * * * * 

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[FR Doc. 2011–1466 Filed 1–25–11; 8:45 am] 

BILLING CODE 6560–50–P 


Emcdonald on DSK2BSOYB1PROD with RULES