[Federal Register Volume 89, Number 36 (Thursday, February 22, 2024)]
[Proposed Rules]
[Pages 13302-13304]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-03616]


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 ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2024-0027; FRL-11418-01-R3]


Air Plan Approval; Virginia; Revision Listing and Implementing 
the 2010 Primary Sulfur Dioxide National Ambient Air Quality Standard 
for the Giles County 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 (Commonwealth or Virginia). This revision 
consists of an amendment to the list of Virginia nonattainment areas to 
include a newly designated sulfur dioxide (SO2) 
nonattainment area. This action is being taken under the Clean Air Act 
(CAA).

DATES: Written comments must be received on or before March 25, 2024.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2024-0027 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, the 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. The 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 &

[[Page 13303]]

Implementation Branch (3AD30), Air & Radiation Division, U.S. 
Environmental Protection Agency, Region III, 1600 John F Kennedy 
Boulevard, 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 9, 2023, the Virginia Department 
of Environmental Quality (VADEQ) submitted a revision to its SIP 
amending an existing regulation in the SIP by adding a sulfur dioxide 
section for the newly designated SO2 nonattainment area in a 
portion of Giles County. This revision is needed for the Commonwealth 
to implement the 2010 primary SO2 National Ambient Air 
Quality Standard (NAAQS).

I. Background

    On June 2, 2010, the EPA Administrator signed a final rule that 
revised the primary SO2 NAAQS (75 FR 35520, June 22, 2010) 
after review of the existing primary SO2 standards 
promulgated on April 30, 1971 (36 FR 8187). The EPA established the 
revised primary SO2 NAAQS at 75 parts per billion (ppb) 
which is attained when the 3-year average of the annual 99th percentile 
of daily maximum 1-hour average concentrations of SO2 does 
not exceed 75 ppb.
    On March 26, 2021 (86 FR 16055), the EPA promulgated initial air 
quality designations for the 2010 primary sulfur dioxide NAAQS. The EPA 
has determined that a portion of Giles County is not meeting the 
SO2 NAAQS and has designated it as a nonattainment area in 
40 CFR 81.347. 40 CFR 81.347 refers to this newly designated 
SO2 nonattainment area as ``Giles County (part)'' and the 
rest of the county which is designated attainment/unclassifiable as 
``Giles County (remainder).'' For the ``Giles County (part),'' 40 CFR 
81.347 also sets forth the geographic coordinates specifying the 
nonattainment area boundary.

II. Summary of SIP Revision and EPA Analysis

    VADEQ's August 9, 2023 SIP submittal proposes to revise Virginia's 
SIP to include amendments to an existing regulation in the SIP which 
add a sulfur dioxide section for the newly designated SO2 
nonattainment area in a portion of Giles County. The amendments revise 
a provision in the Virginia Administrative Code (VAC), specifically 
9VAC5-20-204 ``Nonattainment areas'' Subsection A, with a state 
effective date of February 15, 2023, which geographically defines the 
nonattainment areas by locality for the criteria pollutants indicated. 
The amendments are necessary for implementing the 2010 primary 
SO2 NAAQS. The added subdivision at 9VAC5-20-204 A 5, refers 
to the area as ``Giles County Sulfur Dioxide Nonattainment Area 
(part),'' and defines it as that part of Giles County bounded by the 
lines connecting the coordinate points as designated in 40 CFR 
81.347.\1\ There are also two minor changes--(1) a non-substantive 
wording change to the introductory language of 9VAC5-20-204 A which 
replaced the word ``below'' with ``in this subsection'' so that the 
phrase ``Nonattainment areas are geographically defined below'' now 
reads as ``Nonattainment areas are geographically defined in this 
subsection'' and (2) shifting ``All other pollutants'' from 9VAC5-20-
204 A 5 to 9VAC5-20-204 A 6.
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    \1\ Under 9VAC5-20-21 B and E 1.a.(17) the applicable date for 
40 CFR 81.347 in 9VAC5-20-204 is July 1, 2022. Virginia's August 9, 
2023 SIP revision submittal does not mention 9VAC5-20-21 nor does 
Virginia's SIP include the version of 9VAC5-20-21 at 40 CFR 
52.2420(e)(2) with the July 1, 2022 CFR applicability date.
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III. Proposed Action

    The EPA is proposing to approve the Virginia SIP revision adding 
the ``Giles County Sulfur Dioxide Nonattainment Area (part)'' to 
Virginia's list of nonattainment areas, which VADEQ submitted to the 
EPA on August 9, 2023. The 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 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, the 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 
the 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, the EPA may at

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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. Incorporation by Reference

    In this document, the EPA is proposing to include in a final EPA 
rule regulatory text that includes incorporation by reference. In 
accordance with requirements of 1 CFR 51.5, the EPA is proposing to 
incorporate by reference the VADEQ regulation amending 9VAC5-20-204 to 
add a new sulfur dioxide nonattainment area and two other minor changes 
as discussed in section II of this document, ``Summary of SIP Revision 
and EPA Analysis.'' The EPA has made, and will continue to make, these 
materials generally available through www.regulations.gov and at the 
EPA Region 3 Office (please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section of this preamble for more 
information).

VI. 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, the 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); 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 Clean Air Act;
    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 the EPA or an 
Indian tribe has demonstrated that a tribe has jurisdiction. In those 
areas of Indian country, the rule amending the list of Virginia 
nonattainment areas to include a newly designated sulfur dioxide 
(SO2) 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).
    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. 
The 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.'' The 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.''
    The 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. The 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 
Executive Order 12898 of achieving environmental justice for people of 
color, low-income populations, and Indigenous peoples.

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.

Adam Ortiz,
Regional Administrator, Region III.
[FR Doc. 2024-03616 Filed 2-21-24; 8:45 am]
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