[Federal Register Volume 86, Number 238 (Wednesday, December 15, 2021)]
[Proposed Rules]
[Pages 71214-71216]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27100]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2021-0606; FRL-9176-01-R3]


Air Plan Approval; Virginia; Revision to the Classification and 
Implementation of the 2015 Ozone National Ambient Air Quality Standard 
for the Northern Virginia Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a state implementation plan (SIP) revision submitted by the 
Commonwealth of Virginia. This revision consists of an amendment to an 
existing regulation which adds a new section listing the localities 
that comprise the Northern Virginia ozone nonattainment area, which is 
classified as marginal for the 2015 8-hour ozone national ambient air 
quality standard (NAAQS). This action is being taken under the Clean 
Air Act (CAA).

DATES: Written comments must be received on or before January 14, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2021-0606 at https://www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, follow 
the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be confidential business information (CBI) or other 
information whose disclosure is

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restricted by statute. Multimedia submissions (audio, video, etc.) must 
be accompanied by a written comment. The written comment is considered 
the official comment and should include discussion of all points you 
wish to make. EPA will generally not consider comments or comment 
contents located outside of the primary submission (i.e., on the web, 
cloud, or other file sharing system). For additional submission 
methods, please contact the person identified in the FOR FURTHER 
INFORMATION CONTACT section. For the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Serena Nichols, Planning & 
Implementation Branch (3AD30), Air & Radiation Division, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103. The telephone number is (215) 814-
2053. Ms. Nichols can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION: On August 28, 2020, the Virginia Department 
of Environmental Quality (VADEQ) submitted a revision to its SIP 
amending an existing regulation by adding a new section listing the 
localities that comprise the Northern Virginia ozone nonattainment 
area, which is classified as marginal for the 2015 8-hour ozone NAAQS. 
This revision is needed for the Commonwealth to implement the 2015 8-
hour ozone NAAQS in the Northern Virginia ozone nonattainment area.

I. Background

    Under the CAA, EPA establishes NAAQS for criteria pollutants in 
order to protect human health and the environment. In response to 
scientific evidence linking ozone exposure to adverse health effects, 
EPA promulgated the first ozone NAAQS, the 0.12 part per million (ppm) 
1-hour ozone NAAQS, in 1979. See 44 FR 8202 (February 8, 1979). The CAA 
requires EPA to review and reevaluate the NAAQS every five years in 
order to consider updated information regarding the effects of the 
criteria pollutants on human health and the environment. On July 18, 
1997, EPA promulgated a revised ozone NAAQS, referred to as the 1997 
ozone NAAQS, of 0.08 ppm averaged over eight hours. 62 FR 38855. This 
8-hour ozone NAAQS was determined to be more protective of public 
health than the previous 1979 1-hour ozone NAAQS. In 2008, EPA 
strengthened the 8-hour ozone NAAQS from 0.08 to 0.075 ppm. See 73 FR 
16436 (March 27, 2008). In 2015, EPA further refined the 8-hour ozone 
NAAQS from 0.075 ppm to 0.070 ppm. The 0.070 ppm standard is referred 
to as the 2015 8-hour ozone NAAQS. See 80 FR 65452 (October 26, 2015).
    On June 4, 2018 and July 25, 2018, EPA designated nonattainment 
areas for the 2015 8-hour ozone NAAQS. 83 FR 25776 and 83 FR 35136. 
Effective August 3, 2018, the Washington, DC-MD-VA area was designated 
as marginal nonattainment for the 2015 8-hour ozone NAAQS. The Virginia 
portion of the Washington, DC-MD-VA nonattainment area comprises 
Arlington County, Fairfax County, Loudoun County, Prince William 
County, Alexandria City, Fairfax City, Falls Church City, Manassas 
City, and Manassas Park City, Virginia. See 40 CFR 81.347. Virginia 
defines their portion of the Washington, DC-MD-VA nonattainment area as 
the ``Northern Virginia ozone nonattainment area.''

II. Summary of SIP Revision and EPA Analysis

    Virginia's August 28, 2020 SIP revision consists of an amendment to 
an existing regulation which adds a new section listing the localities 
that comprise the Northern Virginia ozone nonattainment area, which is 
classified as marginal for the 2015 ozone NAAQS. The amendments revise 
the Virginia Administrative Code (VAC), specifically 9VAC5-20-204 
(Nonattainment areas) Subsection A, which geographically defines the 
nonattainment areas by locality for the criteria pollutants indicated. 
The amendments are necessary for implementation of the 2015 ozone 
NAAQS. The added subdivision, 9VAC5-20-204 A 4, defines the Northern 
Virginia marginal ozone nonattainment area for the 2015 8-hour ozone 
standard as including the following areas: Arlington County, Fairfax 
County, Loudoun County, Prince William County, Alexandria City, Fairfax 
City, Falls Church City, Manassas City, and Manassas Park City. A 
reference is also added to subsection a of 40 CFR 51.1303, which 
pertains to the application of classification and attainment date 
provisions for areas designated nonattainment for the 2015 8-hour ozone 
NAAQS.

III. Proposed Action

    EPA is proposing to approve the Virginia SIP revision amending the 
subsection listing the localities that comprise the Northern Virginia 
ozone nonattainment area for the 2015 8-hour ozone NAAQS, which was 
submitted on August 28, 2020. EPA is soliciting public comments on the 
issues discussed in this document. These comments will be considered 
before taking final action.

IV. 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 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

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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.

V. 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 approves 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 Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     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).
    The SIP, amending the section listing the localities that comprise 
the Northern Virginia ozone nonattainment area, is not approved to 
apply on any Indian reservation land as defined in 18 U.S.C. 1151 or in 
any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. In those areas of Indian country, the rule 
revising the section listing the localities that comprise the Northern 
Virginia ozone nonattainment area, does not have tribal implications 
and will not impose substantial direct costs on tribal governments or 
preempt tribal law as specified by Executive Order 13175 (65 FR 67249, 
November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: December 8, 2021.
Diana Esher,
Acting Regional Administrator, Region III.
[FR Doc. 2021-27100 Filed 12-14-21; 8:45 am]
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