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[Federal Register Volume 80, Number 13 (Wednesday, January 21, 2015)]
[Rules and Regulations]
[Pages 2832-2834]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-00639]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2014-0494; FRL-9921-71-Region 3]

Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Revisions to the State Implementation Plan Approved by EPA 
Through Letter Notice Actions

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action on administrative changes to the Virginia State Implementation 
Plan (SIP) which EPA had previously approved through a Letter Notice 
action. The revision will allow the Commonwealth of Virginia to submit 
SIP revision requests to EPA via electronic submission, with a caveat. 
EPA has approved this revision which allows electronic submission of 
SIP revision requests from Virginia. The Commonwealth will continue to 
supply additional paper copies as currently described in, and in 
accordance with, the requirements of the Clean Air Act (CAA) until such 
time as EPA amends the Federal regulations to allow sole electronic 
submissions of SIP requests.
    EPA has determined that this action falls under the ``good cause'' 
exemption in the Administrative Procedure Act (APA), which authorizes 
agencies to dispense with public participation and which allows an 
agency to make an action effective immediately (thereby avoiding the 
30-day delayed effective date otherwise provided for in the APA).

DATES: This action is effective January 21, 2015.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2014-0494. All documents in the docket are listed in 
the 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 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 
email at mccauley.sharon@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    EPA is taking final action on administrative changes to the 
Virginia SIP. On February 11, 2014, the Commonwealth of Virginia 
submitted a SIP revision requesting that EPA allow for the electronic 
transmission of SIP requests from the Commonwealth. EPA determined that 
the revision was a minor SIP revision without any substantive changes 
and complied with applicable requirements of the CAA and EPA regulation 
concerning transmission of SIP revisions as long as the Commonwealth 
continued to submit paper copies as referenced in 40 CFR part 51.103 
until such time that EPA has implemented planned regulatory changes 
which will allow for sole electronic submission of SIP requests. EPA 
had approved this revision with the caveat as described above through 
Letter Notice to Virginia dated July 17, 2014 consistent with the 
procedures outlined in EPA's Notice of Procedural Changes on SIP 
processing published on January 19, 1989 at 54 FR 2214 and consistent 
with the procedures outlined in an April 6, 2011 memo from Janet 
McCabe, Deputy Assistant Administrator for the Office of Air and 
Radiation, regarding Regional Consistency for the Administrative 
Requirements for State Implementation. A copy of this memo is included 
within the Docket for this SIP revision. Today's action completes the 
July 17, 2014 administrative amendment to the SIP by amending 40 CFR 
52.2420(c) to include new terms for defining certified mail and mail by 
the Commonwealth of Virginia.

II. EPA Action

    EPA is taking final action on administrative changes to the 
Virginia SIP. EPA has determined that today's action falls under the 
``good cause'' exemption in the section 553(b)(3)(B) of the APA which, 
upon finding ``good cause,'' authorizes agencies to dispense with 
public participation and section 553(d)(3) which allows an agency to 
make an action effective immediately (thereby avoiding the 30-day 
delayed effective date otherwise provided in the APA). With respect to 
the SIP revision described above, today's administrative action simply 
codifies provisions which are already in effect as a matter of law in 
Federal and state programs. Under section 553 of the APA, an agency may 
find good cause where procedures are ``impractical, unnecessary, or 
contrary to the public interest.'' Public comment for this 
administrative action is ``unnecessary'' because the revisions are 
administrative and non-substantive in nature. Immediate notice of this 
action in the Federal Register benefits the public by providing the 
public notice of the updated Virginia SIP. Approval of these revisions 
will ensure consistency between the Commonwealth and Federally-approved 
rules. EPA has determined that these changes will not relax the SIP or 
adversely impact air emissions.

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

[[Page 2833]]

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 that: (1) Are generated or developed before 
the commencement of a voluntary environmental assessment; (2) are 
prepared independently of the assessment process; (3) demonstrate a 
clear, imminent and substantial danger to the public health or 
environment; or (4) 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 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. 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 March 23, 2015. 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 which approves electronic transmittal submission of 
SIP revision requests from the Commonwealth of Virginia may not be 
challenged later in proceedings to enforce its requirements. (See 
section 307(b)(2).)

[[Page 2834]]

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: December 16, 2014.
William C. Early,
Acting, Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for 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 adding 
the entry in the chart below as the last entry for ``Terms Defined'' 
under State citation 5-10-20. The additional text reads as follows:

Sec.  52.2420  Identification of plan.

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    (c) * * *

                                 EPA-Approved Virginia Regulations and Statutes
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                                                     State                               Explanation [former SIP
   State  citation          Title/subject       effective date     EPA approval date            citation]
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                                9 VAC 5, Chapter 10 General Definitions [Part 1]
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                                                  * * * * * * *
5-10-20..............  Terms Defined..........        08/28/13  [01/21/15] [Insert       Terms Added--Certified
                                                                 Federal Register         Mail, Mail.
                                                                 citation].
 
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[FR Doc. 2015-00639 Filed 1-20-15; 8:45 am]
BILLING CODE 6560-50-P
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