[Federal Register Volume 88, Number 8 (Thursday, January 12, 2023)]
[Proposed Rules]
[Pages 2050-2057]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00091]



[[Page 2050]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2022-0870; FRL-9148-01-R3]


Air Plan Approval; Virginia; 1997 8-Hour Ozone National Ambient 
Air Quality Standard Second Maintenance Plan for the Richmond-
Petersburg 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 pertains to the Commonwealth's 
plan, submitted by the Virginia Department of Environmental Quality 
(VADEQ), for maintaining the 1997 8-hour ozone national ambient air 
quality standards (NAAQS) (referred to as the ``1997 ozone NAAQS'') in 
the Richmond, Virginia Area (Richmond-Petersburg Area). This action is 
being taken under the Clean Air Act (CAA).

DATES: Written comments must be received on or before February 13, 
2023.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2022-0870 at 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 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 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, 1600 John F. Kennedy 
Blvd., 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 September 21, 2021, the VADEQ submitted a 
revision to the Virginia SIP to incorporate a plan for maintaining the 
1997 ozone NAAQS in the Richmond-Petersburg Area through December 31, 
2028, in accordance with CAA section 175A.

I. Background

    In 1979, under section 109 of the CAA, EPA established primary and 
secondary NAAQS for ozone at 0.12 parts per million (ppm), averaged 
over a 1-hour period. 44 FR 8202 (February 8, 1979). On July 18, 1997 
(62 FR 38856),\1\ EPA revised the primary and secondary NAAQS for ozone 
to set the acceptable level of ozone in the ambient air at 0.08 ppm, 
averaged over an 8-hour period. EPA set the 1997 ozone NAAQS based on 
scientific evidence demonstrating that ozone causes adverse health 
effects at lower concentrations and over longer periods of time than 
was understood when the pre-existing 1-hour ozone NAAQS was set.
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    \1\ In March 2008, EPA completed another review of the primary 
and secondary ozone standards and tightened them further by lowering 
the level for both to 0.075 ppm. 73 FR 16436 (March 27, 2008). 
Additionally, in October 2015, EPA completed a review of the primary 
and secondary ozone standards and tightened them by lowering the 
level for both to 0.70 ppm. 80 FR 65292 (October 26, 2015).
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    Following promulgation of a new or revised NAAQS, EPA is required 
by the CAA to designate areas throughout the nation as attaining or not 
attaining the NAAQS. On April 30, 2004 (69 FR 23858), EPA designated 
the Richmond-Petersburg Area as nonattainment for the 1997 ozone NAAQS. 
The Richmond-Petersburg Area consists of the counties of Charles City, 
Chesterfield, Hanover, Henrico, and Prince George, and the cities of 
Colonial Heights, Hopewell, Richmond, and Petersburg.
    Once a nonattainment area has three years of complete and certified 
air quality data that has been determined to attain the NAAQS, and the 
area has met the other criteria outlined in CAA section 
107(d)(3)(E),\2\ the state can submit a request to EPA to redesignate 
the area to attainment. Areas that have been redesignated by EPA from 
nonattainment to attainment are referred to as ``maintenance areas.'' 
One of the criteria for redesignation is to have an approved 
maintenance plan under CAA section 175A. The maintenance plan must 
demonstrate that the area will continue to maintain the standard for 
the period extending 10 years after redesignation, and it must contain 
such additional measures as necessary to ensure maintenance as well as 
contingency measures as necessary to assure that violations of the 
standard will be promptly corrected.
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    \2\ The requirements of CAA section 107(d)(3)(E) include 
attainment of the NAAQS, full approval under section 110(k) of the 
applicable SIP, determination that improvement in air quality is a 
result of permanent and enforceable reductions in emissions, 
demonstration that the state has met all applicable section 110 and 
part D requirements, and a fully approved maintenance plan under CAA 
section 175A.
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    On June 1st, 2007 (72 FR 30485), EPA approved a redesignation 
request (and maintenance plan) from VADEQ for the Richmond-Petersburg 
Area for the 1997 ozone NAAQS. In accordance with section 175A(b), at 
the end of the eighth year after the effective date of the 
redesignation, the state must also submit a second maintenance plan to 
ensure ongoing maintenance of the standard for an additional 10 years.
    EPA's final implementation rule for the 2008 ozone NAAQS revoked 
the 1997 ozone NAAQS and provided that one consequence of revocation 
was that areas that had been redesignated to attainment (i.e., 
maintenance areas) for the 1997 ozone NAAQS no longer needed to submit 
second 10-year maintenance plans under CAA section 175A(b).\3\ See 80 
FR 12315 (March 6, 2015). However, in South Coast Air Quality 
Management District v. EPA \4\ (South Coast II), the United States 
Court of Appeals for the District of Columbia (D.C. Circuit) vacated 
EPA's interpretation that, because of the revocation of the 1997 ozone 
standard, second maintenance plans were not required for ``orphan 
maintenance areas,'' (i.e., areas like the Richmond-Petersburg Area) 
that had been redesignated to attainment for the 1997 ozone NAAQS and 
were designated attainment for the 2008 ozone NAAQS. Thus, states with 
these ``orphan maintenance areas'' under the 1997 ozone NAAQS must 
submit maintenance plans for the second maintenance period.
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    \3\ See 80 FR 12315 (March 6, 2015).
    \4\ 882 F.3d 1138 (D.C. Cir. 2018).
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    As previously discussed, CAA section 175A sets forth the criteria 
for adequate maintenance plans. In addition, EPA

[[Page 2051]]

has published longstanding guidance \5\ that provides further insight 
on the content of an approvable maintenance plan, explaining that a 
maintenance plan should address five elements: (1) an attainment 
emissions inventory; (2) a maintenance demonstration; (3) a commitment 
for continued air quality monitoring; (4) a process for verification of 
continued attainment; and (5) a contingency plan. The 1992 Calcagni 
Memo \6\ provides that states may generally demonstrate maintenance by 
either performing air quality modeling to show that the future mix of 
sources and emission rates will not cause a violation of the NAAQS or 
by showing that future emissions of a pollutant and its precursors will 
not exceed the level of emissions during a year when the area was 
attaining the NAAQS (i.e., attainment year inventory). See 1992 
Calcagni Memo at p. 9. EPA further clarified in three subsequent 
guidance memos describing ``limited maintenance plans'' (LMPs) \7\ that 
the requirements of CAA section 175A could be met by demonstrating that 
the area's design value \8\ was well below the NAAQS and that the 
historical stability of the area's air quality levels showed that the 
area was unlikely to violate the NAAQS in the future. Specifically, EPA 
believes that if the most recent air quality design value for the area 
is at a level that is below 85% of the standard, or in this case below 
0.071 ppm, then EPA considers the state to have met the section 175A 
requirement for a demonstration that the area will maintain the NAAQS 
for the requisite period. Accordingly, on September 21, 2021, VADEQ 
submitted an LMP for the Richmond-Petersburg Area, following EPA's LMP 
guidance and demonstrating that the area will maintain the 1997 ozone 
NAAQS through December 31, 2028, i.e., through the entire 20-year 
maintenance period.
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    \5\ See ``Limited Maintenance Plan Option for Nonclassifiable 
Ozone Nonattainment Areas'' from Sally L. Shaver, Office of Air 
Quality Planning and Standards (OAQPS), dated November 16, 1994;
    \6\ ``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' Memorandum from John Calcagni, Director, Air Quality 
Management Division, September 4, 1992 (1992 Calcagni Memo).
    \7\ See ``Limited Maintenance Plan Option for Nonclassifiable 
Ozone Nonattainment Areas'' from Sally L. Shaver, Office of Air 
Quality Planning and Standards (OAQPS), dated November 16, 1994; 
``Limited Maintenance Plan Option for Nonclassifiable CO 
Nonattainment Areas'' from Joseph Paisie, OAQPS, dated October 6, 
1995; and ``Limited Maintenance Plan Option for Moderate 
PM10 Nonattainment Areas'' from Lydia Wegman, OAQPS, 
dated August 9, 2001.
    \8\ The ozone design value for a monitoring site is the 3-year 
average of the annual fourth-highest daily maximum 8-hour average 
ozone concentrations. The design value for an ozone nonattainment 
area is the highest design value of any monitoring site in the area.
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II. Summary of SIP Revision and EPA Analysis

    VADEQ's September 21, 2021 submittal outlines a plan for continued 
maintenance of the 1997 ozone NAAQS which addresses the criteria set 
forth in EPA guidance, including the 1992 Calcagni Memo as follows.

A. Attainment Emissions Inventory

    For maintenance plans, a state should develop a comprehensive and 
accurate inventory of actual emissions for an attainment year which 
identifies the level of emissions in the area which is sufficient to 
maintain the NAAQS. The inventory should be developed consistent with 
EPA's most recent guidance. For ozone, the inventory should be based on 
typical summer day's emissions of nitrogen oxides (NOX) and 
volatile organic compounds (VOC), the precursors to ozone formation. In 
the first maintenance plan for the Richmond-Petersburg Area, VADEQ used 
2005 for the attainment year inventory, because 2005 was one of the 
years in the 2003-2005 three-year period when the area first attained 
the 1997 ozone NAAQS.\9\ The Richmond-Petersburg Area continued to 
monitor attainment of the 1997 ozone NAAQS in 2014. Therefore, the 
emissions inventory from 2014 represents emissions levels conducive to 
continued attainment (i.e., maintenance) of the NAAQS. Thus, VADEQ is 
using 2014 as representing attainment level emissions for its second 
maintenance plan. Virginia used 2014 summer day emissions from EPA's 
2014 version 7.0 modeling platform as the basis for the 2014 inventory 
presented in Table 1 in this document.\10\
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    \9\ For more information, see EPA's April 12, 2007 document 
proposing to redesignate the Richmond-Petersburg Area to attainment 
for the 1997 ozone NAAQS, and the associated May 10, 2007 notice 
correcting table 5 in the proposal (72 FR 18434, 72 FR 26581).
    \10\ For more information, visit www.epa.gov/sites/production/files/2018-11/ozone_1997_naaqs_emiss_inv_data_nov_19_2018_0.xlsx.

       Table 1--2014 Typical Summer Day NOX and VOC Emissions for the Richmond-Petersburg Area in Tons/Day
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                                                                                NOX emissions
                    Area                              Source category                             VOC emissions
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Charles City County.........................  Fire...........................             0.00              0.00
                                              Nonpoint.......................             0.27              0.37
                                              Nonroad........................             0.35              0.91
                                              Onroad.........................             0.30              0.21
                                              Point..........................             0.44              0.27
Chesterfield County.........................  Fire...........................             0.01              0.08
                                              Nonpoint.......................             1.86              9.10
                                              Nonroad........................             2.35              2.60
                                              Onroad.........................             9.66              6.09
                                              Point..........................             8.44              3.28
Colonial Heights City.......................  Fire...........................             0.00              0.00
                                              Nonpoint.......................             0.09              0.48
                                              Nonroad........................             0.05              0.09
                                              Onroad.........................             0.80              0.40
                                              Point..........................             0.00              0.00
Hanover County..............................  Fire...........................             0.01              0.08
                                              Nonpoint.......................             1.08              3.85
                                              Nonroad........................             1.37              2.07
                                              Onroad.........................             7.19              2.56
                                              Point..........................             1.96              1.45
Henrico County..............................  Fire...........................             0.00              0.00
                                              Nonpoint.......................             2.04              8.54
                                              Nonroad........................             3.37              1.89
                                              Onroad.........................            10.61              5.85

[[Page 2052]]

 
                                              Point..........................             1.26              0.29
Hopewell City...............................  Fire...........................             0.00              0.00
                                              Nonpoint.......................             0.04              0.52
                                              Nonroad........................             0.09              0.16
                                              Onroad.........................             0.55              0.45
                                              Point..........................            26.62              2.48
Petersburg City.............................  Fire...........................            <0.01              0.00
                                              Nonpoint.......................             0.48              1.25
                                              Nonroad........................             0.10              0.14
                                              Onroad.........................             1.54              0.84
                                              Point..........................             0.17              0.01
Prince George County........................  Fire...........................             0.03              0.31
                                              Nonpoint.......................             0.67              1.03
                                              Nonroad........................             0.48              1.18
                                              Onroad.........................             2.75              1.03
                                              Point..........................             0.14              0.01
Richmond City...............................  Fire...........................             0.00              0.00
                                              Nonpoint.......................             1.34              6.59
                                              Nonroad........................             0.87              1.37
                                              Onroad.........................             7.09              4.40
                                              Point..........................             4.56              1.27
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    The data shown in Table 1 in this document is based on the 2014 
National Emissions Inventory (NEI) version 2.\11\ The inventory 
addresses four anthropogenic emission source categories: Stationary 
(point) sources, stationary nonpoint (area) sources, nonroad mobile, 
and onroad mobile sources. Point sources are stationary sources that 
have the potential to emit more than 100 tons per year (tpy) of VOC, or 
more than 50 tpy of NOX, and which are required to obtain an 
operating permit. The point source sector includes large industrial 
operations that are relatively few in number but have large emissions, 
such as kraft mills, electrical generating units, and pharmaceutical 
factories. Nonpoint sources include emissions from equipment, 
operations, and activities that are numerous and in total have 
significant emissions. Examples include emissions from commercial and 
consumer products, portable fuel containers, home heating, repair and 
refinishing operations, and crematories. The nonroad emissions sector 
includes emissions from engines that are not primarily used to propel 
transportation equipment, such as generators, forklifts, and marine 
pleasure craft. The onroad emissions sector includes emissions from 
engines used primarily to propel equipment on highways and other roads, 
including passenger vehicles, motorcycles, and heavy-duty diesel 
trucks. The fire emissions sector includes emissions from agricultural 
burning, prescribed fires, wildfires, and other types of fires. Data 
are collected for each source at a facility and reported to VADEQ. EPA 
reviewed the emissions inventory submitted by VADEQ and proposes to 
conclude that the plan's inventory is acceptable for the purposes of a 
subsequent maintenance plan under CAA section 175A(b).
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    \11\ The NEI is a comprehensive and detailed estimate of air 
emissions of criteria pollutants, criteria precursors, and hazardous 
air pollutants from air emissions sources. The NEI is released every 
three years based primarily upon data provided by State, Local, and 
Tribal air agencies for sources in their jurisdictions and 
supplemented by data developed by EPA.
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B. Maintenance Demonstration

    In order to attain the 1997 ozone NAAQS, the three-year average of 
the fourth-highest daily average ozone concentration (design value, or 
``DV'') at each monitor within an area must not exceed 0.08 ppm. Based 
on the rounding convention described in 40 CFR part 50, appendix I, the 
standard is attained if the DV is 0.084 ppm or below. CAA section 175A 
requires a demonstration that the area will continue to maintain the 
NAAQS throughout the duration of the requisite maintenance period. 
Consistent with the prior guidance documents discussed previously in 
this document as well as EPA's November 20, 2018 ``Resource Document 
for 1997 Ozone NAAQS Areas: Supporting Information for States 
Developing Maintenance Plans'' (2018 Resource Document),\12\ EPA 
believes that if the most recent DV for the area is well below the 
NAAQS (e.g., below 85%, or in this case below 0.071 ppm), the section 
175A demonstration requirement has been met, provided that prevention 
of significant deterioration requirements, any control measures already 
in the SIP, and any Federal measures remain in place through the end of 
the second 10-year maintenance period (absent a showing consistent with 
section 110(l) that such measures are not necessary to assure 
maintenance).
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    \12\ This resource document is included in the docket for this 
rulemaking available online at www.regulations.gov, Docket ID: EPA-
R03-OAR-2022-0870 and is also available at www.epa.gov/sites/production/files/2018-11/documents/ozone_1997_naaqs_lmp_resource_document_nov_20_2018.pdf.

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    For the purposes of demonstrating continued maintenance with the 
1997 ozone NAAQS, VADEQ provided 3-year DVs at monitors located in the 
Richmond-Petersburg Area from 2001 to 2020. This includes DVs at 
monitors for 2001-2003, 2002-2004, 2003-2005, 2004-2006, 2005-2007, 
2006-2008, 2007-2009, 2008-2010, 2009-2011, 2010-2012, 2011-2013, 2012-
2014, 2013-2015, 2014-2016, 2015-2017, 2016-2018, 2017-2019, and 2018-
2020, which are shown in Table 2 in this document.\13\ In addition, EPA 
has reviewed the most recent ambient air quality monitoring data for 
ozone in the Richmond-Petersburg Area, as submitted by Virginia and 
recorded in EPA's Air Quality System. The most recent DVs (i.e., 2019-
2021) at monitors located in the Richmond-Petersburg Area are as 
follows: Chesterfield County, 0.058 ppm; Henrico County 0.060 ppm; 
Hanover County, 0.058 ppm; Charles City, 0.058 ppm.\14\
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    \13\ See also Figure 2 of VADEQ's September 21, 2021 submittal, 
included in the docket for this rulemaking available online at 
www.regulations.gov, Docket ID: EPA-R03-OAR-2022-0870.
    \14\ This data is also included in the docket for this 
rulemaking available online at www.regulations.gov, Docket ID: EPA-
R03-OAR-2022-0870 and is also available at www.epa.gov/air-trends/air-quality-design-values#report.

[[Page 2054]]



                                                                                          Table 2--1997 Ozone NAAQS Design Values in Parts per Million for the Richmond-Petersburg Area
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                County                        AQS Site ID        2001-2003  2002-2004  2003-2005  2004-2006  2005-2007  2006-2008  2007-2009  2008-2010  2009-2011  2010-2012  2011-2013  2012-2014  2013-2015  2014-2016  2015-2017  2016-2018  2017-2019  2018-2020  2019-2021
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Chesterfield.........................  51-041-0004.............      .086       .082       .077       .076       .077       .078       .074       .075       .072       .075       .069       .066       .062       .062       .062        .06       .059       .057       .058
Henrico..............................  51-087-0014.............       .09       .085        .08       .081       .085       .085       .078       .076       .074       .078       .073       .068       .063       .064       .065       .066       .065       .061        .06
Hanover..............................  51-085-0003.............      .094        .09       .082       .081       .081        .08       .075       .075       .073       .076       .072       .068       .063       .062       .063       .064       .063        .06       .058
Charles City.........................  51-036-0002.............      .091       .087       .079        .08       .082       .083       .077       .075       .075       .079       .073       .067       .062       .063       .061       .063       .062       .059       .058
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[[Page 2055]]

    Additionally, states can support the demonstration of continued 
maintenance by showing stable or improving air quality trends. 
According to EPA's 2018 Resource Document, several kinds of analyses 
can be performed by states wishing to make such a showing. One approach 
is to take the most recent DV at a monitor located in the area and add 
the maximum design value increase (over one or more consecutive years) 
that has been observed in the area over the past several years. For an 
area with multiple monitors, the highest of the most recent DVs should 
be used. A sum that does not exceed the level of the 1997 ozone NAAQS 
may be a good indicator of expected continued attainment. The largest 
increase in DVs at a monitor located in the Richmond-Petersburg Area 
was 0.004 ppm, which occurred between the 2004-2006 (0.081 ppm) and 
2005-2007 (0.085 ppm) DVs at the Henrico monitoring site. Adding 0.004 
ppm to the highest DV for the 2018-2020 period (0.061 ppm) results in 
0.065 ppm, a sum that is still below the 1997 ozone NAAQS.
    DVs at all monitors located in the Richmond-Petersburg Area have 
been below 85% of the 1997 ozone NAAQS (i.e., 0.071 ppm or 71 ppb) 
since the 2012-2014 period. Additional supporting information that the 
area is expected to continue to maintain the standard can be found in 
projections of future year DVs that EPA recently completed to assist 
states with the development of interstate transport SIPs for the 2015 
8-hour ozone NAAQS. Those projections, made for the year 2023, show 
that the highest DV at a monitor located in the Richmond-Petersburg 
Area is expected to be 0.062 ppm.\15\ Therefore, EPA proposes to 
determine that future violations of the 1997 ozone NAAQS in the 
Richmond-Petersburg Area are unlikely.
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    \15\ See U.S. EPA, ``Air Quality Modeling Technical Support 
Document for the Updated 2023 Projected Ozone Design Values'', 
Office of Air Quality Planning and Standards, dated June 2018, 
available at www.epa.gov/sites/default/files/2018-06/documents/aq_modelingtsd_updated_2023_modeling_o3_dvs.pdf.
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C. Continued Air Quality Monitoring and Verification of Continued 
Attainment

    Once an area has been redesignated to attainment, the state remains 
obligated to maintain an air quality network in accordance with 40 CFR 
part 58, in order to verify the area's attainment status. In the 
September 21, 2021 submittal, VADEQ commits to continue to operate 
their air monitoring network in accordance with 40 CFR part 58. VADEQ 
also commits to track the attainment status of the Richmond-Petersburg 
Area for the 1997 ozone NAAQS through the review of air quality and 
emissions data during the second maintenance period. EPA has analyzed 
the commitments in VADEQ's submittal and is proposing to determine that 
they meet the requirements for continued air quality monitoring and 
verification of continued attainment.

D. Contingency Plan

    The contingency plan provisions are designed to promptly correct or 
prevent a violation of the NAAQS that might occur after redesignation 
of an area to attainment. Section 175A of the CAA requires that a 
maintenance plan include such contingency measures as EPA deems 
necessary to assure that the state will promptly correct a violation of 
the NAAQS that occurs after redesignation. The maintenance plan should 
identify the contingency measures to be adopted, a schedule and 
procedure for adoption and implementation of the contingency measures, 
and a time limit for action by the state. The state should also 
identify specific indicators to be used to determine when the 
contingency measures need to be adopted and implemented. The 
maintenance plan must require that the state will implement all 
pollution control measures that were contained in the SIP before 
redesignation of the area to attainment. See section 175(A)(d) of the 
CAA.
    VADEQ's September 21, 2021 submittal includes the following 
contingency plan for the Richmond-Petersburg Area:
    Virginia commits to implement all measures with respect to the 
control of NOX and VOC contained in the SIP for the area 
before redesignation to attainment/maintenance. General conformity 
requirements and transportation conformity requirements will no longer 
apply once this maintenance plan expires on December 31, 2028.
    Any ozone monitor in the area registering a fourth-highest, eight-
hour average of 0.085 ppm or greater is considered to have recorded an 
exceedance of the 1997 ozone NAAQS. One control measure listed in Table 
3 in this document will be implemented in the unlikely event that a 
monitor registers an exceedance.
    Any ozone monitor in the area registering a three-year average of 
the fourth-highest, eight-hour ozone values of 0.085 ppm or greater is 
considered to have recorded a violation of the 1997 ozone NAAQS. Two 
additional control measures listed in Table 3 in this document will be 
implemented in the unlikely event that a monitor registers a violation.
    Two additional control measures listed in Table 3 in this document 
will be implemented in the unlikely event that an ozone monitor 
registers a second violation following the implementation of the first 
contingency measures.

[[Page 2056]]



  Table 3--Contingency Measures for the Richmond-Petersburg Maintenance
                                  Area
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                Program                            Description
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Ozone Transport Commission (OTC)         Rule provides additional
 Architectural and Industrial (AIM)       requirements reducing
 Coating Model Rule dated October 13,     emissions from the AIM source
 2014 \16\.                               category.
OTC Model Rule for Consumer Products     Rule provides additional
 dated May 21, 2013 \17\.                 requirements reducing
                                          emissions from the Consumer
                                          Product source category.
OTC Model Rule for Solvent Degreasing    Rule provides additional
 dated 2012 \18\.                         requirements reducing
                                          emissions from the solvent
                                          degreasing category.
Article 51 of 9VAC5 Chapter 40,          Application of NOX Reasonably
 Emission Standards for Stationary        Available Control Technology
 Sources Subject to Case-by-Case RACT     (RACT) on facilities with a
 Determinations.                          potential to emit at least 100
                                          tpy NOX.
Article 51 of 9VAC5 Chapter 40,          Application of VOC RACT on
 Emission Standards for Stationary        facilities with a potential to
 Sources Subject to Case-by-Case RACT     emit at least 100 tpy VOC.
 Determinations.
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    \16\ otcair.org/upload/Documents/Model%20Rules/AIM_Preamble_Model_Rule.pdf.
    \17\ otcair.org/upload/Documents/Model%20Rules/OTC%20CP%20Model%20Rule%20Final%20Clean%202013%20Revision%20Clean.pdf
.
    \18\ otcair.org/upload/Documents/Model%20Rules/2011%20OTC%20Model%20Rule%20for%20Solvent%20Degreasing.pdf.
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    The following schedule applies to contingency measures should they 
need to be implemented due to exceedances or violations of the 1997 
ozone NAAQS:
     Notification received from EPA that a contingency measure 
must be implemented or three months after a recorded exceedance or 
violation is certified.
     Applicable regulation to be adopted 6 months after this 
date.
     Applicable regulation to be implemented 6 months after 
adoption.
     Compliance with regulation to be achieved within 12 months 
of adoption.
    EPA proposes to find that the contingency plan included in VADEQ's 
September 21, 2021 submittal satisfies the pertinent requirements of 
CAA section 175A(d). EPA also finds that the submittal acknowledges 
Virginia's continuing requirement to implement all pollution control 
measures that were contained in the SIP before redesignation of the 
Richmond-Petersburg Area to attainment.

E. Transportation Conformity

    Transportation conformity is required by section 176(c) of the CAA. 
Conformity to a SIP means that transportation activities will not 
produce new air quality violations, worsen existing violations, or 
delay timely attainment of the NAAQS (CAA 176(c)(1)(B)). EPA's 
conformity rule at 40 CFR part 93 requires that transportation plans, 
programs and projects conform to SIPs and establish the criteria and 
procedures for determining whether or not they conform. The conformity 
rule generally requires a demonstration that emissions from the 
Regional Transportation Plan (RTP) and Transportation Improvement 
Program (TIP) are consistent with the motor vehicle emissions budget 
(MVEB) contained in the control strategy SIP revision or maintenance 
plan (40 CFR 93.101, 93.118, and 93.124). An MVEB is defined as ``that 
portion of the total allowable emissions defined in the submitted or 
approved control strategy implementation plan revision or maintenance 
plan for a certain date for the purpose of meeting reasonable further 
progress milestones or demonstrating attainment or maintenance of the 
NAAQS, for any criteria pollutant or its precursors, allocated to 
highway and transit vehicle use and emissions (40 CFR 93.101).''
    Under the conformity rule, LMP areas may demonstrate conformity 
without a regional emission analysis (40 CFR 93.109(e)). However, 
because LMP areas are still maintenance areas, certain aspects of 
transportation conformity determinations still will be required for 
transportation plans, programs, and projects. Specifically, for such 
determination, RTPs, TIPs, and transportation projects still will have 
to demonstrate that they are fiscally constrained (40 CFR 93.108), meet 
the criteria for consultation (40 CFR 93.105 and 93.112) and satisfy 
transportation control measure implementation in the conformity rule 
provisions (40 CFR 93.113).
    Additionally, conformity determinations for RTPs and TIPs must be 
determined no less frequently than every four years, and conformity of 
transportation plan and TIP amendments and transportation projects is 
demonstrated in accordance with the timing requirements specified in 40 
CFR 93.104. In addition, for projects to be approved, they must come 
from a currently conforming RTP and TIP (40 CFR 93.114 and 93.115). The 
Richmond-Petersburg Area remains under the obligation to meet the 
applicable conformity requirements for the 1997 ozone NAAQS.

III. Proposed Action

    EPA's review of VADEQ's September 21, 2021 submittal indicates that 
it meets all applicable CAA requirements, specifically the requirements 
of CAA section 175A. EPA is proposing to approve the second maintenance 
plan for the Richmond-Petersburg Area as a revision to the Virginia 
SIP. 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. 
10.11198, 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

[[Page 2057]]

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.

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 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 pertaining to Virginia's second maintenance 
plan for the Richmond-Petersburg 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, Nitrogen dioxide, Ozone, Volatile organic compounds.

Adam Ortiz,
Regional Administrator, Region III.
[FR Doc. 2023-00091 Filed 1-11-23; 8:45 am]
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