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Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
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and local governments and EPA
developed and signed a memorandum of agreement that describes the local control measures the state or local community intends to adopt and implement to reduce ozone emissions in advance of air quality violations. In this agreement, also known as an Early Action Compact EAC, the state or local communities agree to prepare emission inventories and conduct air quality modeling and monitoring to support its selection of emission controls. Areas that participated in the EAC program had the flexibility to institute their own approach in maintaining clean air and protecting public health. Several localities in the Winchester and Roanoke areas elected to participate in the EAC program. The areas that signed an EAC were the City of Winchester and Frederick County, which comprised the Northern Shenandoah Valley EAC; and the cities of Roanoke and Salem, and the counties of Roanoke and Botetourt, which comprised the Roanoke EAC.
VADEQs approach to implementing the EAC was that RACT be applied to sources of NOX and volatile organic compounds VOCs within those localities that were otherwise not subject to RACT. The Roanoke Electric Steel Corporation, currently SDI, was one such source. On April 27, 2005, EPA approved a SIP revision for the Commonwealth of Virginia which incorporated provisions from a federally enforceable state operating permit into the Virginia SIP in order to apply RACT
to several units at SDI Virginia permit registration No. 20131, issued December 22, 2004; hereafter, 2004 Permit. See 70 FR 21621.
II. Summary of SIP Revision and EPA
Analysis Virginias April 14, 2020 submittal includes a revised operating permit for SDI which amends the 2004 permit to account for changes in operation at the facility, including the shut-down of a number of units. Since the issuance of the 2004 permit and EPAs subsequent SIP approval, operations at the facility have changed, requiring a revision of both the operating permit and the operating permit provisions incorporated into the SIP. The only remaining units at the facility that are subject to the source specific NOX RACT
limits of the 2004 permit are Electric Arc Furnace EAF 5 and the Ladle Metallurgical Station LMS 5. The other units have been removed, replaced with equipment that was not subject to RACT, or never constructed. The RACT
limits for those remaining units have not changed, and there are no emissions increases associated with either the
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revised permit, or Virginias proposed SIP revision. The permit, and ultimately the SIP, are simply being revised to account for the removal of provisions related to emissions units that no longer exist. Other specific requirements of and the rationale for EPAs proposed action are explained in the NPRM and will not be restated here.
III. EPAs Response to Comments Received EPA received one comment in response to the proposed rulemaking.
The comment was supportive of EPAs proposed action and will not be addressed here but is provided in the docket for this rulemaking. No adverse comments were received.
IV. Final Action EPA is approving VADEQs April 14, 2020 submittal as a revision to the Virginia SIP.
V. 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. Virginias 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. Virginias Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.11198, 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
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law, Va. Code Sec. 10.11198, 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 regarding 10.11198, 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.
Virginias Immunity law, Va. Code Sec. 10.11199, provides that to 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 Generals 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 Virginias 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.
VI. Incorporation by Reference In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation
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