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: 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).

EFFECTIVE DATE: This final rule is effective on [insert date 30 days from date of 

publication].

ADDRESSES: EPA has established a docket for this action under Docket ID Number EPAR03-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 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 
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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 email 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 545344). The comment 
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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 EPA-administered 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
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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 Aenforce Federally authorized environmental programs in a manner that is no less 

stringent than their Federal counterparts. . . .” The opinion concludes that “[r]egarding ' 10.1-
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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 Clean Air Act 

is likewise unaffected by this, or any, state audit privilege or immunity law.
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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.); 
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 does not contain any unfunded mandate or significantly or uniquely affect small 

governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 

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
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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 [Insert date 60 days from

date of publication of this document in the Federal Register]. 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. 
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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.

 W. C. Early, Acting

 Regional Administrator

___February 18, 2010___ ___________________________ 

Dated: Shawn M. Garvin, 

Regional Administrator,

EPA Region III.
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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 B Virginia

2. In ' 52.2420, the table in paragraph (c) is amended by revising the entry for Chapter 140, 

Section 5-140-3400 to 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 140

Regulations for Emissions Trading Programs

* * * * * * *

Part IV SO2 Annual Trading Program

* * * * * * *

5-140-3400 State trading budgets 12/12/07 [Insert Federal 

Register

publication date] 

[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.

* * * * * * *

* * * * *