Rule2023-05463
Air Plan Approval; Virginia; 1997 8-Hour Ozone National Ambient Air Quality Standards Second Maintenance Plan for the Richmond-Petersburg Area
Primary source
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Published
March 23, 2023
Effective
April 24, 2023
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is approving 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). EPA is approving this revision to the Virginia SIP in accordance with the requirements of the Clean Air Act (CAA).
Full Text
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<title>Federal Register, Volume 88 Issue 56 (Thursday, March 23, 2023)</title>
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[Federal Register Volume 88, Number 56 (Thursday, March 23, 2023)]
[Rules and Regulations]
[Pages 17374-17376]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-05463]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2022-0870; FRL-9148-02-R3]
Air Plan Approval; Virginia; 1997 8-Hour Ozone National Ambient
Air Quality Standards Second Maintenance Plan for the Richmond-
Petersburg 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. 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). 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 April 24, 2023.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2022-0870. All documents in the docket are listed on
the <a href="http://www.regulations.gov">www.regulations.gov</a> 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
<a href="http://www.regulations.gov">www.regulations.gov</a>, or please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section for additional availability
information.
FOR FURTHER INFORMATION CONTACT: Serena Nichols, Planning &
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
<a href="/cdn-cgi/l/email-protection#da94b3b9b2b5b6a9f489bfa8bfb4bb9abfaabbf4bdb5ac"><span class="__cf_email__" data-cfemail="733d1a101b1c1f005d201601161d12331603125d141c05">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
On January 12, 2023 (88 FR 2050), 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 Richmond-Petersburg Area through December 31, 2028,
in accordance with CAA section 175A. The formal SIP revision was
submitted by Virginia on September 21, 2021.
II. Summary of SIP Revision and EPA Analysis
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 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 Richmond-Petersburg 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 21, 2021 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 January 12, 2023, 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
[[Page 17375]]
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 21, 2021 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 Richmond-Petersburg 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.
<a href="http://www.epa.gov/air-trends/air-quality-design-values">www.epa.gov/air-trends/air-quality-design-values</a>.
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Other specific requirements of Virginia's September 21, 2021
submittal and the rationale for EPA's proposed action are explained in
the NPRM and will not be restated here. No public comments were
received on the NPRM.
III. Final Action
EPA is approving VADEQ's second maintenance plan for the Richmond-
Petersburg 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.
10.11198, 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 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. 10.11199, 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
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:
<bullet> 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);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> 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.);
<bullet> 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);
<bullet> Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
<bullet> 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
<bullet> 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
[[Page 17376]]
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).
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 May 22, 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
Richmond-Petersburg 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
the entry ``Second Maintenance Plan for the Richmond-Petersburg 1997 8-
Hour Ozone Nonattainment Area'' at the end of the table to read as
follows:
Sec. 52.2420 Identification of plan.
* * * * *
(e) * * *
(1) * * *
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Name of non-regulatory SIP Applicable State Additional
revision geographic area submittal date EPA approval date explanation
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* * * * * * *
Second Maintenance Plan for the Richmond-Petersburg 09/21/21 3/23/23, [INSERT The Richmond-
Richmond-Petersburg 1997 8-Hour Area. Federal Register Petersburg area
Ozone Nonattainment Area. CITATION]. consists of the
counties of
Charles City,
Chesterfield,
Hanover, Henrico,
and Prince George,
and the cities of
Colonial Heights,
Hopewell,
Richmond, and
Petersburg.
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[FR Doc. 2023-05463 Filed 3-22-23; 8:45 am]
BILLING CODE 6560-50-P
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