[Federal Register Volume 88, Number 199 (Tuesday, October 17, 2023)]
[Rules and Regulations]
[Pages 71487-71490]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-22741]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2023-0089; FRL-10213-02-R3]


Air Plan Approval; Virginia; 1997 8-Hour Ozone National Ambient 
Air Quality Standard Second Maintenance Plan for the Hampton Roads Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a state 
implementation plan (SIP) revision submitted by the Commonwealth of 
Virginia (Commonwealth or 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 Norfolk-Virginia Beach-Newport News 
(Hampton Roads), VA Area (Hampton Roads Area). EPA is approving this 
revision to the Virginia SIP in accordance with the requirements of the 
Clean Air Act (CAA).

DATES: This final rule is effective on November 16, 2023.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2023-0089. All documents in the docket are listed on 
the www.regulations.gov website. Although listed in the index, some 
information is not publicly available, e.g., 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 through 
www.regulations.gov, or please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: Om P. Devkota, Planning & 
Implementation Branch (3AD30), Air & Radiation Division, U.S. 
Environmental Protection Agency, Region III, Four Penn Center, 1600 
John F. Kennedy Boulevard, Philadelphia, Pennsylvania 19103. The 
telephone number is (215) 814-2172. Mr. Devkota can also be reached via 
electronic mail at [email protected].

SUPPLEMENTARY INFORMATION:

[[Page 71488]]

I. Background

    On August 22, 2023 (88 FR 57020), EPA published a notice of 
proposed rulemaking (NPRM) for the Commonwealth of Virginia. In the 
NPRM, EPA proposed approval of Virginia's plan for maintaining the 1997 
ozone NAAQS in the Hampton Roads Area through December 31, 2032, in 
accordance with CAA section 175A. The formal SIP revision was submitted 
by Virginia on September 9, 2022.

II. Summary of SIP Revision and EPA Analysis

    On June 1, 2007 (72 FR 30490), EPA approved a redesignation request 
(and maintenance plan) from VADEQ for the Hampton Roads Area for the 
1997 ozone NAAQS. In accordance with CAA 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, and in South 
Coast Air Quality Management District v. EPA,\1\ the District of 
Columbia (D.C.) Circuit held that this requirement cannot be waived for 
areas, like the Hampton Roads Area, that had been redesignated to 
attainment for the 1997 8-hour ozone NAAQS prior to revocation and that 
were designated attainment for the 2008 ozone NAAQS. CAA section 175A 
sets forth the criteria for adequate maintenance plans. In addition, 
EPA has published longstanding guidance 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.\2\ VADEQ's September 
9, 2022 submittal fulfills Virginia's obligation to submit a second 
maintenance plan and addresses each of the five necessary elements, as 
explained in the NPRM.
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    \1\ 882 F.3d 1138 (D.C. Cir. 2018).
    \2\ ``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' Memorandum from John Calcagni, Director, Air Quality 
Management Division, September 4, 1992 (Calcagni Memo).
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    As discussed in the August 22, 2023 (88 FR 57020) NPRM, EPA allows 
the submittal of a limited maintenance plan (LMP) to meet the statutory 
requirement that the area will maintain for the statutory period. 
Qualifying areas may meet the maintenance demonstration by showing that 
the area's design value \3\ is well below the NAAQS and that the 
historical stability of the area's air quality levels indicates that 
the area is unlikely to violate the NAAQS in the future. EPA evaluated 
VADEQ's September 9, 2022 submittal for consistency with all applicable 
EPA guidance and CAA requirements. EPA found that the submittal met CAA 
section 175A and all CAA requirements, and proposed approval of the LMP 
for the Hampton Roads Area as a revision to the Virginia SIP.
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    \3\ 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. 
www.epa.gov/air-trends/air-quality-design-values.
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    Other specific requirements of Virginia's September 9, 2022 
submittal and the rationale for EPA's proposed action are explained in 
the NPRM and will not be restated here. EPA received two supportive 
comments for this action, which can be found at Docket ID Number EPA-
R03-OAR-2023-0089.

III. Final Action

    EPA is approving VADEQ's second maintenance plan for the Hampton 
Roads Area for the 1997 ozone NAAQS as a revision to the Virginia SIP.

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 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

[[Page 71489]]

CAA is likewise unaffected by this, or any, state audit privilege or 
immunity law.

V. 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 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); and
     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;
    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 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).
    Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
February 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' EPA further defines the term fair treatment to mean that 
``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    VADEQ did not evaluate environmental justice considerations as part 
of its SIP submittal; the CAA and applicable implementing regulations 
neither prohibit nor require such an evaluation. EPA did not perform an 
EJ analysis and did not consider EJ in this action. Consideration of EJ 
is not required as part of this action, and there is no information in 
the record inconsistent with the stated goal of E.O. 12898 of achieving 
environmental justice for people of color, low-income populations, and 
Indigenous peoples.

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 December 18, 2023. 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, approving VADEQ's second maintenance plan for the 
Hampton Roads Area for the 1997 ozone NAAQS, may not be challenged 
later in proceedings to enforce its requirements. (See section 
307(b)(2).)

List of Subjects in 40 CFR Part 52

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

Adam Ortiz,
Regional Administrator, Region III.

    For the reasons stated in the preamble, the EPA amends 40 CFR part 
52 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 (e)(1) is amended by adding 
an entry for ``1997 8-Hour Ozone National Ambient Air Quality Standard 
Second Maintenance Plan for the Hampton Roads Area'' at the end of the 
table to read as follows:


Sec.  52.2420   Identification of plan.

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    (e) * * *
    (1) * * *

[[Page 71490]]



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   Name of non-regulatory SIP        Applicable      State submittal
            revision              geographic area          date        EPA approval date  Additional explanation
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                                                  * * * * * * *
1997 8-Hour Ozone National       Hampton Roads             09/09/2022  10/17/2023,        The Hampton Roads Area
 Ambient Air Quality Standard     Area (Norfolk-                        [INSERT Federal    consists of the
 Second Maintenance Plan for      Virginia Beach-                       Register           counties of
 the Hampton Roads Area.          Newport News                          CITATION].         Gloucester, Isle of
                                  area).                                                   Wight, James City,
                                                                                           and York, and the
                                                                                           cities of Chesapeake,
                                                                                           Hampton, Newport
                                                                                           News, Norfolk,
                                                                                           Poquoson, Portsmouth,
                                                                                           Suffolk, Virginia
                                                                                           Beach, and
                                                                                           Williamsburg.
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[FR Doc. 2023-22741 Filed 10-16-23; 8:45 am]
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