
[Federal Register Volume 88, Number 161 (Tuesday, August 22, 2023)]
[Proposed Rules]
[Pages 57020-57026]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18048]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2023-0089; FRL-10213-01-Region 3]


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: Proposed rule.

-----------------------------------------------------------------------

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 
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 standard (NAAQS) (referred to 
as the 1997 ozone NAAQS) in the Norfolk-Virginia Beach-Newport News 
(Hampton Roads), VA Area (Hampton Roads Area or Area). This action is 
being taken under the Clean Air Act (CAA).

DATES: Written comments must be received on or before September 21, 
2023.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2023-0089 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: 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: On September 9, 2022, the VADEQ submitted a 
revision to the Virginia SIP to incorporate a plan for maintaining the 
1997 ozone NAAQS through December 31, 2032 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.
---------------------------------------------------------------------------

    \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 0.070 ppm. 80 FR 65292 (October 26, 2015).
---------------------------------------------------------------------------

    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 Hampton Roads Area as moderate nonattainment for the 1997 ozone 
NAAQS. The 1997 Hampton Roads Ozone Maintenance Area includes the 
counties of Gloucester, Isle of Wight, James City, and York, as well as 
the cities of Chesapeake, Hampton, Newport News, Norfolk, Poquoson, 
Portsmouth, Suffolk, Virginia Beach, and Williamsburg.
    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    On June 1, 2007 (72 FR 30490), EPA approved a redesignation request 
(and maintenance plan) from VADEQ for the Hampton Roads Area. EPA 
published final approval of the redesignation request and maintenance 
plan on June 1, 2007 (72 FR 30490), and, as of that time, the area was 
designated as attainment 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.
    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\ 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 
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

[[Page 57021]]

Hampton Roads 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.
---------------------------------------------------------------------------

    \3\ See 80 FR 12315 (March 6, 2015).
    \4\ 882 F.3d 1138 (D.C. Cir. 2018).
---------------------------------------------------------------------------

    As previously discussed, CAA section 175A sets forth the criteria 
for adequate maintenance plans. In addition, EPA 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 9, 2022, VADEQ 
submitted the Hampton Roads Area second maintenance plan, following the 
LMP guidance, and demonstrating that the area will maintain the 1997 
ozone NAAQS through December 31, 2032, i.e., through the entire second 
maintenance period. Starting from January 1, 2033, after this 
maintenance plan expires, the Area will no longer be bound by the 
general conformity requirements and transportation conformity 
requirements outlined in section 176 of the CAA. However, any other 
control programs will continue to be in effect, unless there is 
evidence to show that they are unnecessary for complying with the 1997 
ozone NAAQS.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

II. Summary of SIP Revision and EPA Analysis

    VADEQ's September 9, 2022 SIP submittal outlines a plan for 
continued maintenance of the 1997 ozone NAAQS which addresses the 
criteria set forth in 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 oxides of nitrogen (NOX) 
and volatile organic compounds (VOC), the precursors to ozone 
formation. In the first maintenance plan for the Hampton Roads 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 Hampton Roads Area continued to 
monitor attainment of the 1997 ozone NAAQS in 2016. Therefore, the 
emissions inventory from 2016 represents emissions levels conducive to 
continued attainment (i.e., maintenance) of the NAAQS.\10\ Thus, VADEQ 
is using 2016 as representing attainment level emissions for its second 
maintenance plan. Virginia used 2016 summer day emissions from EPA's 
2016 version 2.0 modeling platform \11\ as the basis for the 2016 
inventory presented in Table 1 in this document.
---------------------------------------------------------------------------

    \9\ For more information, see EPA's June 1, 2007 ``Approval and 
Promulgation of Air Quality Implementation Plans; Virginia; 
Redesignation of the Hampton Roads 8-Hour Ozone Nonattainment Area 
to Attainment and Approval of the Area's Maintenance Plan and 2002 
Base-Year Inventory'' (72 FR 30490).
    \10\ The design values for the Hampton Roads maintenance area 
for each of the three-year averages containing 2016 are 0.064 ppm 
for 2014-2016, 0.065 ppm for 2015-2017, and 0.064 ppm for 2016-2018. 
Since these values are well beneath the 1997 ozone NAAQS of 0.08 
ppm, the 2016 emissions inventory is a suitable inventory to use as 
an attainment inventory for this second maintenance plan.
    \11\ For more information, visit www.epa.gov/air-emissions-modeling/2016v2-platform.

            Table 1--2016 Typical Summer Day VOC and NOX Emissions (tons/day) for Hampton Roads Area
----------------------------------------------------------------------------------------------------------------
                                                                                                   NOX emissions
                     Name                                Source category           VOC emissions
----------------------------------------------------------------------------------------------------------------
Gloucester County.............................  Point...........................          0.0690          0.4076
                                                Nonpoint........................          2.1190          0.1218
                                                Onroad..........................          0.7055          1.0346
                                                Nonroad.........................          1.0918          3.2830
Isle of Wight County..........................  Point...........................          0.8257          1.4711
                                                Nonpoint........................          1.1699          0.4066
                                                Onroad..........................          0.7703          1.4166
                                                Nonroad.........................          0.5220          0.5769
James City County.............................  Point...........................          0.3748          1.3513
                                                Nonpoint........................          2.1067          0.4862
                                                Onroad..........................          0.8237          1.7141
                                                Nonroad.........................          1.0240          1.5179

[[Page 57022]]

 
York County...................................  Point...........................          1.7402         12.8452
                                                Nonpoint........................          2.9341          0.2426
                                                Onroad..........................          0.8814          1.8463
                                                Nonroad.........................          1.5854          1.0722
City of Chesapeake............................  Point...........................          1.6099          2.7698
                                                Nonpoint........................          9.3508          1.4014
                                                Onroad..........................          2.8211          5.1701
                                                Nonroad.........................          1.9042          3.0290
City of Hampton...............................  Point...........................          0.1701          0.1629
                                                Nonpoint........................          3.2443          0.3825
                                                Onroad..........................          1.6943          2.8409
                                                Nonroad.........................          1.1797          5.0726
City of Newport News..........................  Point...........................          1.3226          3.1034
                                                Nonpoint........................          6.5468          2.1701
                                                Onroad..........................          2.0997          3.3499
                                                Nonroad.........................          2.0554          0.9644
City of Norfolk...............................  Point...........................          1.4293          2.7084
                                                Nonpoint........................          8.3975          1.0968
                                                Onroad..........................          2.6110          4.3803
                                                Nonroad.........................          1.7455          6.4235
City of Poquoson..............................  Point...........................            0.00            0.00
                                                Nonpoint........................          0.2597          0.0245
                                                Onroad..........................          0.1318          0.1137
                                                Nonroad.........................          0.2712          0.1425
City of Portsmouth............................  Point...........................          0.0177          3.7311
                                                Nonpoint........................          3.9935          0.3437
                                                Onroad..........................          1.2541          1.6801
                                                Nonroad.........................          0.4959          0.3991
City of Suffolk...............................  Point...........................          0.0478          0.0427
                                                Nonpoint........................          2.5712          0.6950
                                                Onroad..........................          1.1467          3.1387
                                                Nonroad.........................          0.6860          1.4919
City of Virginia Beach........................  Point...........................          3.1577          0.6830
                                                Nonpoint........................         12.4218          1.4933
                                                Onroad..........................          5.2219          6.3737
                                                Nonroad.........................          4.0864          5.4491
City of Williamsburg..........................  Point...........................            0.00            0.00
                                                Nonpoint........................          0.3454          0.0984
                                                Onroad..........................          0.1810          0.1919
                                                Nonroad.........................          0.1640          0.1363
----------------------------------------------------------------------------------------------------------------

    The data shown in Table 1 in this document is based on the 2017 
National Emissions Inventory (NEI) version 2.\12\ 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 (PTE) 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. Data are collected for each source at a 
facility and reported to VADEQ. Examples of point sources include 
municipal solid waste incinerators, landfills, and electric generating 
units. 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, residential wood combustion, home heating, and small 
commercial operations such as vehicle refinishing. 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 nonroad emissions sector 
includes emissions from engines that are not primarily used to propel 
transportation equipment. Examples of equipment in the nonroad category 
include lawn equipment, construction equipment, commercial shipping, 
locomotives, and pleasure craft. 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).
---------------------------------------------------------------------------

    \12\ 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.
---------------------------------------------------------------------------

B. Maintenance Demonstration

    In order to attain the 1997 ozone NAAQS, the three-year average of 
the fourth-highest daily average ozone concentrations (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

[[Page 57023]]

Resource Document),\13\ EPA believes that if the most recent DV for the 
area is well below the NAAQS (i.e., below 85%, or in this case below 
0.071 ppm), the section 175A demonstration requirement has been met, 
provided that Prevention of Significant Deterioration (PSD) 
requirements, any control measures already in the SIP, and any Federal 
measures remain in place through the end of the second maintenance 
period (absent a showing consistent with section 110(1) that such 
measures are not necessary to assure maintenance).
---------------------------------------------------------------------------

    \13\ This resource document is included in the docket for this 
rulemaking available online at www.regulations.gov, Docket ID: EPA-
R03-OAR-2023-0089 and is also available at /www.epa.gov/sites/default/files/2018-11/documents/ozone_1997_naaqs_lmp_resource_document_nov_20_2018.pdf.
---------------------------------------------------------------------------

    For the purposes of demonstrating continued maintenance with the 
1997 ozone NAAQS, VADEQ provided 3-year DVs for the Hampton Roads Area 
from 2001 to 2021. This includes DVs 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, 2018-2020, and 2019-2021. 2007-2009 through 2019-2021 
are shown in Table 2 of this document.\14\ In addition, EPA has 
reviewed the most recent ambient air quality monitoring data for ozone 
in the Hampton Roads Area, as submitted by Virginia and recorded in 
EPA's Air Quality System (AQS). The most recent DV (i.e., 2019-2021) at 
monitors located in the Hampton Roads Area are also shown in Table 2 of 
this rulemaking action.\15\ There currently are three operating ozone 
monitoring sites in the Hampton Roads Area, two in Suffolk City 
(monitors 518000004 and 518000005) and one in Hampton City (monitor 
516500008). As can be seen in Table 2 in this document, DVs at all 
monitors located in the Hampton Roads Area have been well below 85% of 
the 1997 ozone NAAQS (i.e., 0.071 ppm) since the 2012-2014 period. The 
highest DV for the 2019-2021 period at a monitor in the Hampton Roads 
Area is 0.058 ppm, which is well below the 1997 ozone NAAQS.
---------------------------------------------------------------------------

    \14\ See also Figure-2 and Table 3 of VADEQ's September 9, 2022 
submittal, ``Commonwealth of Virginia State Implementation Plan 
Revision Second Maintenance Plan 1997 Ozone National Ambient Air 
Quality Standards Hampton Roads Maintenance Area,'' included in the 
docket for this rulemaking available online at /www.regulations.gov, 
Docket ID: EPA-R03-OAR-2023-0089.
    \15\ This data is also included in the docket for this 
rulemaking available online at www.regulations.gov, Docket ID: EPA-
R03-OAR-2023-0089 and is also available at www.epa.gov/air-trends/air-quality-design-values#report.

       Table 2--Recent 1997 Ozone NAAQS Design Values (ppm) at Monitoring Sites in the Hampton Roads Area
----------------------------------------------------------------------------------------------------------------
                          Jurisdiction                             Hampton City    Suffolk City    Suffolk City
----------------------------------------------------------------------------------------------------------------
                           AQS site ID                               516500008       518000004       518000005
----------------------------------------------------------------------------------------------------------------
2007-2009.......................................................  ..............           0.072           0.073
2008-2010.......................................................  ..............           0.071           0.072
2009-2011.......................................................  ..............           0.071           0.070
2010-2012 \16\..................................................           0.076           0.073           0.071
2011-2013.......................................................           0.072           0.070           0.068
2012-2014.......................................................           0.067           0.064           0.065
2013-2015.......................................................           0.064           0.061           0.062
2014-2016.......................................................           0.064           0.060           0.061
2015-2017.......................................................           0.065           0.061           0.059
2016-2018.......................................................           0.064           0.062           0.059
2017-2019.......................................................           0.062           0.060           0.058
2018-2020.......................................................           0.058           0.058           0.056
2019-2021.......................................................           0.058           0.056           0.056
----------------------------------------------------------------------------------------------------------------

    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 for the area and add the maximum DV 
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. As shown in Table 2 in this 
document, the largest DV increase in the Hampton Roads Area was 0.002 
ppm, which occurred between the 2009-2011 (0.071 ppm) and 2010-2012 
(0.073 ppm) design value periods at one of the monitors located in 
Suffolk City (AQS ID 518000004). Adding 0.002 ppm to the highest DV for 
the 2019-2021 period (0.058 ppm at the Hampton City monitor AQS ID 
516500008) results in 0.060 ppm, a sum that is still below the 1997 
ozone NAAQS.
---------------------------------------------------------------------------

    \16\ AQS site 516500008's design values were first available in 
2010-2012 as this new site replaced a different Hampton City 
monitoring site that is no longer in existence. For more information 
see www.epa.gov/air-trends/air-quality-design-values.
---------------------------------------------------------------------------

    DVs at all monitors located in the Hampton Roads Area have been 
below 85% of the 1997 ozone NAAQS (i.e., 0.071 ppm) 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 Hampton Roads Area is expected to be 
0.058 ppm.\17\ The Hampton Roads Area has maintained the air quality 
levels well below the 1997 ozone NAAQS since the Area first attained 
the NAAQS in the 2003-2005 timeframe.\18\ Therefore, EPA proposes to 
determine that future violations of the

[[Page 57024]]

1997 ozone NAAQS in the Hampton Roads Area are unlikely.
---------------------------------------------------------------------------

    \17\ 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.
    \18\ As explained in EPA's April 13, 2007 document proposing 
``Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Redesignation of the Hampton Roads 8-Hour Ozone 
Nonattainment Area to Attainment and Approval of the Associated 
Maintenance Plan and 2002 Base-Year Inventory for the 1997 ozone 
NAAQS'' (72 FR 18602), the 2003-2005 average DV for the Hampton 
Roads Area was 0.078 ppm.
---------------------------------------------------------------------------

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 9, 2022 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 Hampton Roads 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 175A(d) of the 
CAA.
    VADEQ's September 9, 2022 submittal includes a contingency plan for 
the Hampton Roads Area. Virginia has pledged to execute all actions 
related to the regulation of NOX and VOC contained in the 
SIP for the Hampton Roads area before redesignation to attainment and 
demonstration of maintenance status. Once the maintenance plan expires 
on December 31, 2032,\19\ general conformity and transportation 
conformity requirements will not be applicable anymore. To avoid future 
violation of ozone NAAQS,\20\ the maintenance plan has included 
contingency measures that VADEQ will implement if triggered under two 
main scenarios.
---------------------------------------------------------------------------

    \19\ The first plan for the Hampton Roads 1997 ozone NAAQS 
maintenance area used an end year of 2018. Therefore, this second 
maintenance plan must remain effective through December 31, 2028 at 
a minimum. Virginia chose an end year of 2032 for this second 
maintenance plan based on the availability of inventory information 
for that year. Since 2032 served as the end year of Virginia's 
projected maintenance demonstration inventory, the plan should 
remain effective through December 31, 2032. For more information, 
www.epa.gov/sites/default/files/2018-11/documents/fact_sheet_1997_ozone_maintenance_areas_resource_document_nov_20_2018.pdf.
    \20\ A violation of the NAAQS occurs when an area's 3-year 
design value exceeds the NAAQS.
---------------------------------------------------------------------------

    First, if there is an actual increase in the emissions of VOC or 
NOX above the inventory of the attainment year, such surges 
will be detected or predicted through the development of a 
comprehensive period tracking inventory, such as the NEI. Tracking this 
information is important because an increase in emissions of VOC and 
NOX above the attainment year inventory could be an early 
warning sign of a possible NAAQS exceedance or violation. VADEQ will 
track the observed growth rates for vehicle miles traveled, population, 
and point source VOC and NOX emissions annually. 
Comprehensive tracking of inventories as part of the NEI will also be 
developed in collaboration with EPA every three years using current 
EPA-approved methods for estimating emissions. In the improbable event 
that estimated emissions in the Hampton Roads Area increase above the 
attainment year budget, VADEQ will perform a complete VOC and 
NOX emissions inventory assessment. If this analysis 
indicates that regional emissions of NOX or VOC surpass the 
attainment year levels, VADEQ will put in place one or more control 
measures which are mentioned in Table 3 of this document but are not 
yet implemented.
    Second, VADEQ will use recorded ozone readings to monitor for ozone 
NAAQS exceedances and violations. The 1997 ozone NAAQS is exceeded when 
an annual fourth-highest, eight-hour average of 0.085 ppm or higher is 
recorded by any ozone monitor in the area. In the unlikely event that 
monitor registers an exceedance, VADEQ will implement one yet 
unimplemented control measure listed in Table 3 in this document. The 
1997 ozone NAAQS is violated when a three-year average of each annual 
fourth-highest, eight-hour average of 0.085 ppm or higher is recorded 
by any ozone monitor in the area. In the unlikely event that a monitor 
registers a violation, VADEQ will implement one yet unimplemented 
control measure listed in Table 3 in this document. If an ozone monitor 
registers a second violation after the implementation of a contingency 
measure in response to the first violation, VADEQ will implement one 
additional yet unimplemented control listed in Table 3 in this 
document.
---------------------------------------------------------------------------

    \21\ Model Rule Preamble: Architectural and Industrial 
Maintenance Coatings at otcair.org/upload/Documents/Model%20Rules/AIM_Preamble_Model_Rule.pdf.
    \22\ OTC Model Rule for Consumer Products available at 
otcair.org/upload/Documents/Model%20Rules/OTC%20CP%20Model%20Rule%20Final%20Clean%202013%20Revision%20Clean.pdf
.
    \23\ OTC Model Rule for Solvent Degreasing 2012 available at 
otcair.org/upload/Documents/Model%20Rules/2011%20OTC%20Model%20Rule%20for%20Solvent%20Degreasing.pdf.

Table 3--Hampton Roads Area Second Maintenance Plan Contingency Measures
------------------------------------------------------------------------
                Program                            Description
------------------------------------------------------------------------
OTC Architectural and Industrial (AIM)   Rule provides additional
 Coating Model Rule dated October 13,     requirements reducing
 2014 \21\.                               emissions from the AIM source
                                          category.
OTC Model Rule for Consumer Products     Rule provides additional
 dated May 21, 2013 \22\.                 requirements reducing
                                          emissions from the Consumer
                                          Product source category.
OTC Model Rule for Solvent Degreasing    Rule provides additional
 dated 2012 \23\.                         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 of 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 of at least 100 tpy VOC.
 Determinations.
------------------------------------------------------------------------


[[Page 57025]]

    The following schedule applies to contingency measures should they 
need to be implemented due to exceedances or violations of the 1997 
ozone NAAQS:
    [ssquf] Notification received from EPA that a contingency measure 
must be implemented or three months after a recorded exceedance or 
violation is certified.
    [ssquf] Applicable regulation to be adopted 6 months after this 
date.
    [ssquf] Applicable regulation to be implemented 6 months after 
adoption.
    [ssquf] Compliance with regulation to be achieved within 12 months 
of adoption.
    EPA proposes to find that the contingency plan included in VADEQ's 
September 9, 2022 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 
Hampton Roads 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 the 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). A 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 
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 
Hampton Roads 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 9, 2022 submittal indicates that 
Hampton Roads Area second maintenance plan meets the CAA section 175A 
and all applicable CAA requirements. EPA is proposing to approve the 
second maintenance plan for the Hampton Roads 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 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. 10.11198, 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

[[Page 57026]]

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
    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 1997 8-Hour Ozone 
National Ambient Air Quality Standard Second Maintenance Plan for the 
Hampton Roads 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. 
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.

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. 2023-18048 Filed 8-21-23; 8:45 am]
BILLING CODE 6560-50-P


