[Federal Register Volume 76, Number 102 (Thursday, May 26, 2011)]
[Proposed Rules]
[Pages 30600-30602]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-13068]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2011-0195; FRL-9311-8]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Revisions to Clean Air Interstate Rule Emissions Trading
Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP)
revision submitted by the Commonwealth of Virginia. The revision, which
amends the Virginia Clean Air Interstate Rule (CAIR) trading program,
is comprised of technical corrections and revisions to the definition
of a cogeneration unit to ensure the Commonwealth's CAIR trading
program is consistent with Federal CAIR requirements. This action is
being taken under the Clean Air Act (CAA).
DATES: Written comments must be received on or before June 27, 2011.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2011-0195 by one of the following methods:
A. http://www.regulations.gov. Follow the on-line instructions for
submitting comments.
B. E-mail: [email protected].
C. Mail: EPA-R03-OAR-2011-0195, Cristina Fernandez, Associate
Director, Office of Air Quality Planning, Mailcode 3AP30, U.S.
Environmental Protection Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103.
D. Hand Delivery: At the previously-listed 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-
2011-0195. 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
[[Page 30601]]
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: Marilyn Powers, (215) 814-2308, or by
e-mail at [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. On September 27, 2010, the
Commonwealth of Virginia Department of Environmental Quality (VADEQ)
submitted a revision to its SIP, including technical corrections and
revisions to the definition of a cogeneration unit to ensure the
Commonwealth's CAIR trading program is consistent with Federal CAIR
requirements.
I. Background
EPA approved Virginia's CAIR trading program on December 28, 2007
(72 FR 73602). In the notice of proposed rulemaking (NPR) for
Virginia's CAIR trading program (72 FR 54385, September 25, 2007), EPA
noted that it believed that Virginia clearly intended to replace the
CAIR Federal Implementation Plan (FIP) with a State plan based on the
CAIR model rule that would allow subject sources, non-EGUs from its
Nitrogen Oxides (NOX) SIP Call budget trading program, and
opt-in units meeting the CAIR opt-in criteria to participate in the
EPA-administered regional CAIR trading program. However, EPA also noted
that there were some provisions of Virginia CAIR regulations 9 VAC 5
Chapter 140, Parts II, III, and IV that could be interpreted in a way
that might be inconsistent with the Commonwealth's intent. These
provisions pertain to definitions associated with Virginia's
participation in the regional CAIR trading program, definitions
associated with the State's decision to bring its non-EGUs from its
NOX SIP Call budget trading program into the CAIR trading
program, and a definition of the term ``most stringent state or Federal
NOX emissions limitation'' that is based upon the model rule
but had been expanded by the Commonwealth to include the situation
where more than one fuel is allowed by a permit. EPA determined that
VADEQ's interpretations of these provisions, provided in its letter
dated September 12, 2007, clarified the language of the Virginia
regulations and were consistent with having the EPA-administered CAIR
trading program become effective in Virginia. However EPA recommended,
and VADEQ agreed to, promulgation of clarifying amendments to these
provisions at the Commonwealth's earliest opportunity.
Also, in a rulemaking dated October 19, 2007 (72 FR 59190), EPA
changed the definition of ``cogeneration unit'' in CAIR, the CAIR model
cap and trade rule, and the CAIR FIP with respect to the calculation
methodology for the efficiency standard of a cogeneration unit. The
revised methodology excluded energy input from biomass, making it more
likely that units co-firing biomass would be able to meet the
efficiency standard and qualify for the cogeneration exemption allowed
by CAIR. This change to the Federal requirements was made subsequent to
Virginia's adoption of its CAIR regulations, therefore Virginia is
required to revise its CAIR regulations to incorporate the changes to
the definition of cogeneration unit to allow the exemption for biomass
units to apply to sources in the Commonwealth.
II. Summary of SIP Revision
On September 27, 2010, VADEQ submitted a SIP revision that amended
Virginia's CAIR regulations. The SIP revision incorporates the
clarifying revisions specified in the September 25, 2007 NPR proposing
approval of Virginia's CAIR regulations and the changes to the
definition of ``cogeneration unit'' made in EPA's revised CAIR
rulemaking dated October 19, 2007. The submission also included several
other technical or administrative corrections to these regulations.
The SIP revision applies to the CAIR NOX Annual Trading
Program (9 VAC5 Chapter 140, Part II), the CAIR NOX Ozone
Season Trading Program (9 VAC 5 Chapter 140, Part III), and the CAIR
SO2 Annual Trading Program (9 VAC 5 Chapter 140, Part IV).
The provisions of regulations 5-140-1010, 5-140-2010, and 5-140-3010
relating to ``Purpose,'' and the definitions of ``CAIR NOX
Annual Trading Program,'' ``CAIR NOX Ozone Season Trading
Program,'' ``CAIR SO2 Trading Program,'' and ``permitting
authority'' in regulations 5-140-1020, 5-140-2020, and 5-140-3020 are
amended to clarify that the Commonwealth's CAIR sources are full
participants in the EPA-administered regional CAIR trading programs and
that the Virginia CAIR programs are not trading programs only for
sources geographically located within the borders of the Commonwealth.
The definition of ``most stringent state or Federal NOX
emissions limitation'' in regulations 5-140-1020, 5-140-2020, and 5-
140-3020 is amended to clarify that the primary fuel, where it is not
designated in the permit, is the fuel that would result in the lowest
emission rate. Additionally, the provisions of regulations 5-140-1020,
5-140-2020, and 5-140-3020 are amended to reflect the changes to the
definition of ``cogeneration unit'' that were made to the Federal CAIR
program described previously.
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
[[Page 30602]]
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 ``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.
III. Proposed Action
EPA is proposing to approve the Virginia SIP revision amending the
Commonwealth's CAIR regulations codified at 9 VAC5 Chapter 140, Parts
I, II, and III, which was submitted on September 27, 2010. EPA's
analysis shows that the revisions are consistent with Federal CAIR
requirements. EPA is soliciting public comments on the issues discussed
in this document. These comments will be considered before taking final
action.
IV. Statutory and Executive Order Reviews
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 proposes to approve state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this proposed 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 proposed rule approving Virginia revisions to its
CAIR trading program 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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Nitrogen dioxide,
Ozone, Particulate matter, Reporting and recordkeeping requirements,
Sulfur oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 9, 2011.
W.C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2011-13068 Filed 5-25-11; 8:45 am]
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