[Federal Register Volume 80, Number 13 (Wednesday, January 21, 2015)]
[Rules and Regulations]
[Pages 2832-2834]
From the Federal Register Online via the Government Publishing 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 [email protected].
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]
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