Federal Register / Vol. 89, No. 25 / Tuesday, February 6, 2024 / Proposed Rules 8131 

1The state submission indicates that the twentyyear maintenance period expires on December 31, 

2025. This discrepancy is likely due to EPA’s 

December 23, 2005 redesignation and initial 

approval of the maintenance plan, in which it 

mistakenly listed the publication date as the 

effective date. 70 FR 76165. EPA subsequently 

corrected the effective date, found in 40 CFR part 

81, to January 23, 2006. 72 FR 68515 (December 5, 

2007). Thus, the expiration date of the twenty-year 

maintenance period is January 23, 2026. 

2 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 0.70 ppm. 80 FR 65292 (October 26, 

2015). 

3The 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. 

for payment, the representative of the 

State or Tribal Organization must 

submit to VA an invoice reporting the 

cost for purchase and delivery of outer 

burial receptacles. 

(h) Audits. A State or Tribal

Organization that seeks reimbursement 

for the cost of outer burial receptacles 

under this section will be subject to 

inspections, audits and reports in 

accordance with § 39.122. 

(Authority: 38 U.S.C. 2306(e)) 

PART 39—AID FOR THE 

ESTABLISHMENT, EXPANSION, AND 

IMPROVEMENT, OR OPERATION AND 

MAINTENANCE, OF VETERANS 

CEMETERIES 

■ 3. The authority citation for part 39 

continues to read as follows:

Authority: 38 U.S.C. 101, 501, 2408, 2411, 

3765. 

■ 4. Amend § 39.50 as follows: 

■ a. Remove ‘‘preplaced liners or 

crypts,’’ from paragraph (b)(2); and

■ b. Add paragraph (e); 

The addition reads as follows:

§ 39.50 Amount of grant.

* * * * * 

(e) VA will reimburse the cost of

preplaced outer burial receptacles 

separately in accordance with § 38.629. 

* * * * * 

■ 5. Amend § 39.122 by revising 

paragraph (a) to read as follows:

§ 39.122 Inspections, audits, and reports.

(a) A State or Tribal Organization will

allow VA inspectors and auditors to 

conduct inspections as necessary to 

ensure compliance with the provisions 

of this part and with provisions of 

§ 38.629 regarding outer burial

receptacles. The State or Tribal

Organization will provide to VA

evidence that it has met its

responsibilities under the Single Audit

Act of 1984.

* * * * * 

[FR Doc. 2024–02183 Filed 2–5–24; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2023–0629; FRL–11261– 

01–R3] 

Air Plan Approval; Virginia; 1997 8- 

Hour Ozone National Ambient Air 

Quality Standard Second Maintenance 

Plan for the Fredericksburg 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. 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 

Fredericksburg, Virginia Area 

(Fredericksburg Area). This action is 

being taken under the Clean Air Act 

(CAA). 

DATES: Written comments must be 

received on or before March 7, 2024. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R03– 

OAR–2023–0629 at 

www.regulations.gov, or via email to 

Gordon.Mike@epa.gov. 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-epadockets. 

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 Nichols.Serena@epa.gov. 

SUPPLEMENTARY INFORMATION: On May 

25, 2023, the VADEQ submitted a 

revision to the Virginia SIP to 

incorporate a plan for maintaining the 

1997 ozone NAAQS in the 

Fredericksburg Area through January 23, 

2026,1 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),2 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. 

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 

Fredericksburg Area as nonattainment 

for the 1997 ozone NAAQS. The 

Fredericksburg Area consists of the city 

of Fredericksburg, and the counties of 

Spotsylvania and Stafford. 

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),3 the state can 

submit a request to EPA to redesignate 

the area to attainment. Areas that have 


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4The effective date was January 23, 2006. See 

footnote 1. 

5 882 F.3d 1138 (D.C. Cir. 2018). 

6See ‘‘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. 

7 ‘‘Procedures for Processing Requests to 

Redesignate Areas to Attainment,’’ Memorandum 

from John Calcagni, Director, Air Quality 

Management Division, September 4, 1992 (1992 

Calcagni Memo). 

8See ‘‘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. 

9The 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. 

10For more information, see EPA’s September 12, 

2005 document proposing to redesignate the 

Frederickburg Area to attainment for the 1997 

ozone NAAQS (70 FR 53746). 

11For more information, visit www.epa.gov/sites/ 

production/files/2018-11/ozone_1997_naaqs_

emiss_inv_data_nov_19_2018_0.xlsx. 

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. 

On December 23rd, 2005 (70 FR 

76165),4 EPA approved a redesignation 

request (and maintenance plan) from 

VADEQ for the Fredericksburg Area for 

the 1997 ozone NAAQS. In accordance 

with 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). See 80 FR 12315 (March 6, 

2015). However, in South Coast Air 

Quality Management District v. EPA 5

(South Coast II), the United States Court 

of Appeals for the District of Columbia 

(D.C. Circuit) 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 

Fredericksburg 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. 

As previously discussed, CAA section 

175A sets forth the criteria for adequate 

maintenance plans. In addition, EPA 

has published longstanding guidance 6

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 7 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) 8 that the requirements of 

CAA section 175A could be met by 

demonstrating that the area’s design 

value 9 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 May 25, 2023, 

VADEQ submitted an LMP for the 

Fredericksburg Area, following EPA’s 

LMP guidance and demonstrating that 

the area will maintain the 1997 ozone 

NAAQS through January 23, 2026, i.e., 

through the entire 20-year maintenance 

period. 

II. Summary of SIP Revision and EPA 

Analysis 

VADEQ’s May 25, 2023 submittal 

outlines a plan for continued 

maintenance of the 1997 ozone NAAQS 

which addresses the criteria set forth in 

EPA guidance, including 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 a typical summer 

day’s emissions of nitrogen oxides 

(NOX) and volatile organic compounds 

(VOC), the precursors to ozone 

formation. In the first maintenance plan 

for the Fredericksburg Area, VADEQ 

used 2004 for the attainment year 

inventory, because 2004 was one of the 

years in the 2002–2004 three-year 

period when the area first attained the 

1997 ozone NAAQS.10 The 

Fredericksburg Area continued to 

monitor attainment of the 1997 ozone 

NAAQS in 2014. Therefore, the 

emissions inventory from 2014 

represents emissions levels conducive 

to continued attainment (i.e., 

maintenance) of the NAAQS. Thus, 

VADEQ is using 2014 as representing 

attainment level emissions for its 

second maintenance plan. Virginia used 

2014 summer day emissions from EPA’s 

2014 version 7.0 modeling platform as 

the basis for the 2014 inventory 

presented in Table 1 in this document.11


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12The 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. 

13This resource document is included in the 

docket for this rulemaking available online at 

www.regulations.gov, Docket ID: EPA–R03–OAR– 

2023–0629 and is also available at www.epa.gov/ 

sites/production/files/2018-11/documents/ozone_

1997_naaqs_lmp_resource_document_nov_20_

2018.pdf. 

14See also Figure 2 of VADEQ’s May 25, 2023 

submittal, included in the docket for this 

rulemaking available online at 

www.regulations.gov, Docket ID: EPA–R03–OAR– 

2023–0629. 

15This data is also included in the docket for this 

rulemaking available online at 

www.regulations.gov, Docket ID: EPA–R03–OAR– 

2023–0629 and is also available at www.epa.gov/airtrends/air-quality-design-values#report. 

TABLE 1—2014 TYPICAL SUMMER DAY NOX AND VOC EMISSIONS FOR THE FREDERICKSBURG AREA IN TONS/DAY

Area Source category NOX emissions VOC emissions 

City of Fredericksburg ............................................ Nonpoint ................................................................. 0.21 1.06 

Nonroad .................................................................. 0.08 0.13 

Onroad ................................................................... 1.54 0.85 

Spotsylvania County ............................................... Fire ......................................................................... 0.00 0.01 

Nonpoint ................................................................. 0.70 3.48 

Nonroad .................................................................. 1.41 1.38 

Onroad ................................................................... 6.15 3.15 

Point ....................................................................... 0.01 0.01 

Stafford County ....................................................... Nonpoint ................................................................. 1.00 3.09 

Nonroad .................................................................. 1.44 1.10 

Onroad ................................................................... 5.79 2.24 

Point ....................................................................... 0.16 0.06 

The data shown in Table 1 in this 

document is based on the 2014 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 

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. The point source 

sector includes large industrial 

operations that are relatively few in 

number but have large emissions, such 

as kraft mills, electrical generating units, 

and pharmaceutical factories. 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, portable fuel 

containers, home heating, repair and 

refinishing operations, and crematories. 

The nonroad emissions sector includes 

emissions from engines that are not 

primarily used to propel transportation 

equipment, such as generators, forklifts, 

and marine pleasure craft. 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 fire emissions sector 

includes emissions from agricultural 

burning, prescribed fires, wildfires, and 

other types of fires. Data are collected 

for each source at a facility and reported 

to VADEQ. 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). 

B. Maintenance Demonstration 

In order to attain the 1997 ozone 

NAAQS, the three-year average of the 

fourth-highest daily average ozone 

concentration (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 

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 

Resource Document),13 EPA believes 

that if the most recent DV for the area 

is well below the NAAQS (e.g., below 

85%, or in this case below 0.071 ppm), 

the section 175A demonstration 

requirement has been met, provided that 

prevention of significant deterioration 

requirements, any control measures 

already in the SIP, and any Federal 

measures remain in place through the 

end of the second 10-year maintenance 

period (absent a showing consistent 

with section 110(l) that such measures 

are not necessary to assure 

maintenance). 

For the purposes of demonstrating 

continued maintenance with the 1997 

ozone NAAQS, VADEQ provided 3-year 

DVs at the Stafford County monitor 

located in the Fredericksburg Area from 

2001 to 2021. This includes DVs at the 

monitor 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 which are 

shown in Table 2 in this document.14 In 

addition, EPA has reviewed the most 

recent ambient air quality monitoring 

data for ozone in the Fredericksburg 

Area, as submitted by Virginia and 

recorded in EPA’s Air Quality System. 

The most recent DV (i.e., 2020–2022) at 

the monitor located in the 

Fredericksburg Area is 0.058 ppm.15


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16See 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. 

TABLE 2—1997 OZONE NAAQS DESIGN VALUES IN PARTS PER MILLION FOR THE FREDERICKSBURG AREA

County AQS 

site ID 

2001 – 

2003 

2002 – 

2004 

2003 – 

2005 

2004 – 

2006 

2005 – 

2007 

2006 – 

2008 

2007 – 

2009 

2008 – 

2010 

2009 – 

2011 

2010 – 

2012 

Stafford ............ 511790001 .088 .084 .079 .081 .085 .081 .072 .070 .072 .076 

County AQS 

site ID 

2011 – 

2013 

2012 – 

2014 

2013 – 

2015 

2014 – 

2016 

2015 – 

2017 

2016 – 

2018 

2017 – 

2019 

2018 – 

2020 

2019 – 

2021 

2020 – 

2022 

Stafford ............ 511790001 .071 .067 .063 .063 .062 .062 .060 .059 .059 .058 

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 at a monitor located 

in the area and add the maximum 

design value 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. The 

largest increase in DVs at the Stafford 

monitor located in the Fredericksburg 

Area was 0.004 ppm, which first 

occurred between the 2004–2006 (0.081 

ppm) and 2005–2007 (0.085 ppm) DVs, 

and occurred again between the 2009– 

2011 (0.072 ppm) and 2010–2012 (0.076 

ppm) DVs. Adding 0.004 ppm to the 

highest DV for the 2020–2022 period 

(0.058 ppm) results in 0.062 ppm, a sum 

that is still below the 1997 ozone 

NAAQS. 

DVs at the monitor located in the 

Fredericksburg Area have been below 

85% of the 1997 ozone NAAQS (i.e., 

0.071 ppm or 71 ppb) 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 the monitor located in the 

Fredericksburg Area is expected to be 

0.057 ppm.16 Therefore, EPA proposes 

to determine that future violations of the 

1997 ozone NAAQS in the 

Fredericksburg Area are unlikely. 

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 May 25, 2023 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 Fredericksburg 

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 175(A)(d) of the 

CAA. 

VADEQ’s May 25, 2023 submittal 

includes the following contingency plan 

for the Fredericksburg Area: 

Virginia commits to implement all 

measures with respect to the control of 

NOX and VOC contained in the SIP for 

the area before redesignation to 

attainment/maintenance. General 

conformity requirements and 

transportation conformity requirements 

will no longer apply once this 

maintenance plan expires at the end of 

the twenty-year maintenance period. 

If the ozone monitor in the area 

registers a fourth-highest, eight-hour 

average of 0.085 ppm or greater it is 

considered to have recorded an 

exceedance of the 1997 ozone NAAQS. 

One control measure listed in Table 3 in 

this document will be implemented in 

the unlikely event that a monitor 

registers an exceedance. 

If the ozone monitor in the area 

registers a three-year average of the 

fourth-highest, eight-hour ozone values 

of 0.085 ppm or greater it is considered 

to have recorded a violation of the 1997 

ozone NAAQS. One additional control 

measure listed in Table 3 in this 

document will be implemented in the 

unlikely event that a monitor registers a 

violation. 

One additional control measure listed 

in Table 3 in this document will be 

implemented in the unlikely event that 

the ozone monitor registers a second 

violation following the implementation 

of the first contingency measures. 


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17 otcair.org/upload/Documents/Model%20Rules/ 

AIM_Preamble_Model_Rule.pdf. 

18 otcair.org/upload/Documents/Model%20Rules/

OTC%20CP%20Model%20Rule%20Final%20Clean

%202013%20Revision%20Clean.pdf. 

19 otcair.org/upload/Documents/Model%20Rules/

2011%20OTC%20Model%20Rule

%20for%20Solvent%20Degreasing.pdf. 

TABLE 3—CONTINGENCY MEASURES FOR THE FREDERICKSBURG MAINTENANCE AREA

Program Description 

Ozone Transport Commission (OTC) Architectural and Industrial (AIM) 

Coating Model Rule dated October 13, 2014 17.

Rule provides additional requirements reducing emissions from the AIM 

source category. 

OTC Model Rule for Consumer Products dated May 21, 2013 18 ........... Rule provides additional requirements reducing emissions from the 

Consumer Product source category. 

OTC Model Rule for Solvent Degreasing dated 2012 19 ......................... Rule provides additional requirements reducing emissions from the solvent degreasing category. 

The following schedule applies to 

contingency measures should they need 

to be implemented due to exceedances 

or violations of the 1997 ozone NAAQS: 

• Notification received from EPA that 

a contingency measure must be 

implemented or three months after a 

recorded exceedance or violation is 

certified. 

• Applicable regulation to be adopted 

6 months after this date. 

• Applicable regulation to be 

implemented 6 months after adoption. 

• Compliance with regulation to be 

achieved within 12 months of adoption. 

EPA proposes to find that the 

contingency plan included in VADEQ’s 

May 25, 2023 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 Fredericksburg 

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 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). An 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)). EPA made findings that the 

MVEBs in the first 10-years of the 1997 

8-hour ozone maintenance plan for the 

Fredericksburg Area were adequate for 

transportation conformity purposes. In a 

Federal Register notice published on 

December 23, 2005 (70 FR 76165), EPA 

notified the public of the adequacy 

finding for the Fredericksburg Area 

through a final rule; the adequacy 

determination for the Fredericksburg 

Area became effective on January 23, 

2006. After approval of an adequacy 

finding for the Fredericksburg Area 

LMP, there is no requirement to meet 

the budget test pursuant to the 

transportation conformity rule for the 

respective maintenance area. All actions 

that would require a transportation 

conformity determination for the 

Fredericksburg Area under EPA’s 

transportation conformity rule 

provisions are considered to have 

already satisfied the regional emissions 

analysis and ‘‘budget test’’ requirements 

in 40 CFR 93.118 as a result of EPA’s 

adequacy finding for the LMP. See 69 

FR 40004 (July 1, 2004). 

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 satisfy 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 

Fredericksburg 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 May 25, 

2023 submittal indicates that it meets all 

applicable CAA requirements, 

specifically the requirements of CAA 

section 175A. EPA is proposing to 

approve the second maintenance plan 

for the Fredericksburg 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. 10.1–1198, provides 


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8136 Federal Register / Vol. 89, No. 25 / Tuesday, February 6, 2024 / Proposed Rules 

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 § 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. 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); 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 EPA or an Indian tribe has 

demonstrated that a tribe has 

jurisdiction. In those areas of Indian 

country, the rule pertaining to Virginia’s 

second maintenance plan for the 

Fredericksburg 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.’’ 

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. 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. 2024–02395 Filed 2–5–24; 8:45 am] 

BILLING CODE 6560–50–P 


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