[Federal Register Volume 89, Number 141 (Tuesday, July 23, 2024)]
[Rules and Regulations]
[Pages 59620-59623]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-16121]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2024-0027; FRL-11418-02-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: 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. The revision consists of an amendment to the list of Virginia
nonattainment areas to include a newly designated sulfur dioxide
(SO2) nonattainment 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 August 22, 2024.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2024-0027. 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: Serena Nichols, Planning &
Implementation Branch (3AD30), Air &
[[Page 59621]]
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:
I. Background
On February 22, 2024, EPA published a notice of proposed rulemaking
(NPRM) for the Commonwealth of Virginia (89 FR 13302, February 22,
2024). In the NPRM, EPA proposed approval of Virginia's amendment to 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). Virginia submitted the formal SIP revision on August 9, 2023.
II. Summary of SIP Revision and EPA Analysis
The Virginia Department of Environmental Quality's (VADEQ's) August
9, 2023 SIP submittal proposed 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 Code of Federal Regulations (CFR)
81.347. 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.
Other specific requirements of Virginia's August 9, 2023 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 the Virginia SIP revision adding the ``Giles
County Sulfur Dioxide Nonattainment Area (part)'' to Virginia's list of
nonattainment areas, which the VADEQ submitted to EPA on August 9,
2023.
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 CAA is likewise unaffected by
this, or any, state audit privilege or immunity law.
V. Incorporation by Reference
In this document, EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation by reference of 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 preamble, ``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 III Office
(please contact the person identified in the For Further Information
Contact section of this preamble for more information).
[[Page 59622]]
Therefore, these materials have been approved by EPA for inclusion in
the SIP, have been incorporated by reference by EPA into that plan, are
fully federally enforceable under sections 110 and 113 of the CAA as of
the effective date of the final rulemaking of EPA's approval, and will
be incorporated by reference in the next update to the SIP
compilation.\1\
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\1\ 62 FR 27968 (May 22, 1997).
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VI. 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 Clean Air Act;
In addition, this rule approving Virginia's listing of a newly
designated SO2 nonattainment area into the SIP does not have
tribal implications as specified by Executive Order 13175 (65 FR 67429,
November 9, 2000), because the SIP is not approved to apply in Indian
country located in the State, and EPA notes that it will not impose
substantial direct costs on tribal governments or preempt tribal law.
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.''
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.
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 September 23, 2024. 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, revising Virginia's list of nonattainment areas to
add a portion of Giles County as a nonattainment area for the 2010
primary sulfur dioxide 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, Reporting and recordkeeping
requirements, Sulfur Oxides.
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 (c) is amended by revising
the entry ``5-20-204'' to read as follows:
Sec. 52.2420 Identification of plan.
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(c) * * *
[[Page 59623]]
EPA-Approved Virginia Regulations and Statutes
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State Explanation [former
State citation Title/subject effective date EPA approval date SIP citation]
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9 VAC 5, Chapter 20 General Provisions
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Part II Air Quality Programs
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5-20-204................... Nonattainment Areas.. 2/15/23 7/23/2024, [Insert List of nonattainment
Federal Register areas revised to
Citation]. include Giles County
locality for the
primary sulfur
dioxide standard.
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[FR Doc. 2024-16121 Filed 7-22-24; 8:45 am]
BILLING CODE 6560-50-P