ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [ EPA - R03 - OAR - 2009 - 0599 ; FRL - ] Approval and Promulgation of Air Quality Implementation Plans; Virginia ; Revision to Clean Air Interstate Rule Sulfur Dioxide Trading Program AGENCY : Environment al Protection Agency (EPA). ACTION : Final rule. SUMMARY : EPA is approving a State I mplementation Plan (SI P) revision submitted by the Commonwealth of Virginia
. The revision pertains to the timing for the first phase of the sulfur dioxide ( SO 2 ) trading bu dget under the Commonwealth’s approved regulations that implement the requirements of the Clean Air I nterstate Rule (CAI R). EPA is approving th is revision to change the start date of Virginia’s CAI R SO 2 trading budget from the control period in 2009 to th e control period in 2010 in accordance with the requirements of the Clean Air Act (CAA). EFFECTIVE DATE: This final rule is effective on [ insert date 30 day s from date of publication ]. ADDRESSES : EPA has established a docket for this action under Docke t I D Number EPA R03 - OAR - - 2009 - 0599 . All documents in the docket are listed in the www.regulations.gov website. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information (CBI ) or other i nformation whose disclosure is restricted by statute. Certain other material, such as copy righted material, is not placed on the I nternet and will be publicly

available only

in hard copy

form. Publicly

available docket materials are available either elec tronically through www.regulations.gov or in hard copy for public inspection2

during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency , Region I II, 1650 Arch Street, Philadelphia, Pennsy lvania 19103. Copies of the St ate submittal are available at the Virginia Department of Environmental Quality , 629 East Main Street, Richmond, Virginia, 23219. FOR FURTHER INFORMATION CONTACT : Marily n Powers , (215) 814
- 2308 , or by e mail at powers.marily

n @epa.gov.

SUPPLEMENTARY IN FORMATION : 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 SI P. The SI P revision consists of a change in timing for the f irst phase of the Commonwealth’s approved CAI R SO 2 trading budget. The start for the first phase of the SO 2 trading budget is changed from the control period in 2009 to the control period in 2010.

O n October 22, 2009 ( 74 FR 54485 ), EPA published a Dire ct Final Rule (DFRN ) to approve the January 14, 2009 SI P 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 add ressed in a final action based on the Notice of Proposed Rulemaking (NPR) published on October 22, 2009 (74 FR 545344)
. The comment3

period closed on November 23, 2009. No additional comments were received.

Comment : An anony

mous commenter submitted th e 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. I mportantly , the comment does not oppose EPA’s proposed full approval of the rule
. EPA ther ef ore believes that no ad ditional response is necessary
.
II. S ummary of SIP Revision Virginia regulation 9 VAC 5
- 140
- 3400 originally required that the Commonwealth’ s CAI R SO 2 budget applied starting wi th t he control period in 2009. However, the EPA
- administered CAI R SO 2 trading programs under States’ CAI R SI Ps and under the CAI R FI P start on January 1, 2010, and the associated CAI R SO 2 trading budgets apply starting with the 2010 control period. To
ma ke the Virginia CAI R SO 2 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 SI P revision, Virginia explains that this change c orrects a technical erro r in its approved CAI R SI P. The SI P revision also includes a clarify ing revision to the description of the State’s SO 2 budget.

III. General Information Pertaining to SIP Submittals f rom the Commonwealth of Virgina4

In 1995, Vi rginia 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 pro of 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 regu lated 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 Asses sment Privilege L aw, 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 L aw 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 A 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
-5

1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be p rivileged 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 I mmunity

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 administ rative, 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 I mmunity statutes will not preclude th e 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 enforce ment authorities, EPA may at any time invoke its authority under the C A A, 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. I n addition , citizen enforcement under section 304 of the Clean Air Act is likewise unaffected by

this, or any , state audit privilege or immunity law.6

IV . Final Action EPA is approving the SI P revision submitted by the Commonwealth of Virginia on January 14, 2009. The SI P revision incorporates a timing change to the Commonwealth’s CAI R SO 2 trading program that make it consistent with the regional CAI R SO 2 trading program, under which SO 2 trading budgets apply

starting in 2010 , as well as a clarify ing revision to the description of the State’s SO 2 budget.
V. Statutory and Executive Order Reviews A. General Requirements Under the Clean Air Act, the Administrator is required to approve a SI P 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, i n reviewing SI P 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 bey ond 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 1286 6 (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 ent ities under the Regulatory Flexibility

Act (5 U.S.C. 601 et seq .) ;7

 does not contain any

unfunded mandate or significantly or uniquely

affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public L aw 104
- 4) ;
 d oes not have Fed eralism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999 );

 is not a n economically significant regulatory

action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

 is not a signif

icant 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 require ments 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 Exec utive 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 SI P is not approved to apply in I ndian country located in the st ate, 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 General8

The Congressional Review Act, 5 U.S.C. 801 et seq ., as added by the Small Business Reg ulatory 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 Regis ter . A major rule cannot take effect until 60 day s 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 [ I n sert date 60 day s from date of publication of this document in the Federal Register ]. Filing a petition for reconsideration by

the Ad ministrator 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 ac tion.9

This action to approve a revision to Virginia’s CAI R SO 2 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 polluti on control, In corporation by reference, Sulfur oxides. W. C. Early , Acting Regional Adm inistrator

___ February

18, 2010 ___ ___________________________ Dated: Shawn M. Garvin, Regional Administrator, EPA Region I II.10

40 CFR Part 52 is amended as follow s: 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 B Virginia 2. I n ' 52.2 4 20, the table in paragraph (c) is amended by revising the entry

for Chapter 140, Section 5
- 140
- 3400 to read as follows: ' 52.2 4 20 Id entification of plan
. * * * * * (c) * * * EPA
- APPROVED VI RGI NI A REGUL ATI ONS AND STATUTES State citation Title/subject State effective date EPA

approval date Explanation

[former SI P citation]
* * * * * * * 9 VAC 5, Chapter 140 Regulations for Emissions Trading Programs

* * * * * * * Part IV SO 2 Annual Trading Program * * * * * * * 5
- 140
- 3400 State trading bu dgets 12/12/07 [Insert Federal Register publication date] [Insert page number where the document begins] 1. In section title,

replace “State” w ith “CAIR SO 2 Annual” 2. In paragraph 1, replace 2009 w ith 2010.
* * * * * * * * * * * *