Air Plan Approval; Virginia; Startup, Shutdown, and Malfunction Amendments to Facility and Control Equipment Maintenance or Malfunction Regulations, 24377-24381 [2023-08235]
Download as PDF
<![CDATA[
Federal Register / Vol. 88, No. 76 / Thursday, April 20, 2023 / Proposed Rules
changes in the dates and times of
enforcement, as well as reductions in
size or scope of the safety zone, through
Local Notice to Mariners (LNMs),
Broadcast Notices to Mariners (BNMs),
and/or Safety Marine Information
Broadcast (SMIB) as appropriate.
Dated: April 14, 2023.
A.R. Bender,
Captain, U.S. Coast Guard, Captain of the
Port Sector Upper Mississippi River.
[FR Doc. 2023–08283 Filed 4–19–23; 8:45 am]
BILLING CODE 9110–04–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2023–0104; FRL–10907–
01–R3]
Air Plan Approval; Virginia; Startup,
Shutdown, and Malfunction
Amendments to Facility and Control
Equipment Maintenance or Malfunction
Regulations
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
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
several state regulatory changes
affecting startup, shutdown and
malfunction. This SIP revision was
submitted in response to a finding of
substantial inadequacy and SIP call
published on June 12, 2015, for
provisions in the Virginia SIP. EPA is
proposing to approve the provisions of
the submitted SIP revision and
proposing to determine that the SIP
revision corrects the deficiencies in
Virginia’s SIP identified in the June 12,
2015 SIP call. This action is being taken
under the Clean Air Act (CAA).
DATES: Written comments must be
received on or before May 22, 2023.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R03–
OAR–2023–0104 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)
ddrumheller on DSK120RN23PROD with PROPOSALS1
SUMMARY:
VerDate Sep<11>2014
20:43 Apr 19, 2023
Jkt 259001
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:
Sean Silverman, 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)
814–5511. Mr. Silverman can also be
reached via electronic mail at
silverman.sean@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
A. EPA’s 2015 SSM SIP Action
On February 22, 2013, the EPA issued
a Federal Register notice of proposed
rulemaking (the February 2013
Proposal) outlining EPA’s policy at the
time with respect to SIP provisions
related to periods of Startup, Shutdown,
and Malfunction (SSM). EPA analyzed
specific SSM SIP provisions and
explained how each one either did or
did not comply with the CAA with
regard to excess emission events.1 For
each SIP provision that the EPA
determined to be inconsistent with the
CAA, the EPA proposed to find that the
existing SIP provision was substantially
inadequate to meet CAA requirements
and thus proposed to issue a SIP call
under CAA section 110(k)(5). On
September 17, 2014, the EPA issued a
document supplementing and revising
what the Agency had previously
proposed on February 22, 2013 (the
supplemental notice of proposed
rulemaking (SNPR)), in light of a D.C.
Circuit decision that determined the
CAA precludes authority of the EPA to
1 State Implementation Plans: Response to
Petition for Rulemaking; Findings of Substantial
Inadequacy; and SIP Calls To Amend Provisions
Applying to Excess Emissions During Periods of
Startup, Shutdown, and Malfunction, 78 FR 12460
(February 22, 2013).
PO 00000
Frm 00037
Fmt 4702
Sfmt 4702
24377
create affirmative defense provisions.
EPA outlined its updated policy that
affirmative defense SIP provisions are
not consistent with CAA requirements.
EPA proposed in the supplemental
proposal document to apply its revised
interpretation of the CAA to specific
affirmative defense SIP provisions and
proposed SIP calls for those provisions
where appropriate (79 FR 55920,
September 17, 2014).
On June 12, 2015, pursuant to CAA
section 110(k)(5), the EPA finalized
‘‘State Implementation Plans: Response
to Petition for Rulemaking; Restatement
and Update of EPA’s SSM Policy
Applicable to SIPs; Findings of
Substantial Inadequacy; and SIP Calls to
Amend Provisions Applying to Excess
Emissions During Periods of Startup,
Shutdown and Malfunction,’’ (80 FR
33839, June 12, 2015), hereafter referred
to as the ‘‘2015 SSM SIP Action.’’ The
2015 SSM SIP Action clarified, restated,
and updated the EPA’s interpretation
that SSM exemptions (whether
automatic or discretionary) and
affirmative defense SIP provisions are
inconsistent with CAA requirements.
The 2015 SSM SIP Action found that
certain SIP provisions in 36 states were
substantially inadequate to meet CAA
requirements and issued a SIP call to
those states to submit SIP revisions to
address the inadequacies. EPA
established an 18-month deadline by
which the affected states had to submit
such SIP revisions. States were required
to submit corrective revisions to their
SIPs in response to the SIP calls by
November 22, 2016. One regulation in
Virginia’s SIP was included in the 2015
SSM SIP Action. 80 FR 33840 at 33961
(June 12, 2015).
EPA issued a Memorandum in
October 2020 (2020 Memorandum),
which stated that certain provisions
governing SSM periods in SIPs could be
viewed as consistent with CAA
requirements.2 Importantly, the 2020
Memorandum stated that it ‘‘did not
alter in any way the determinations
made in the 2015 SSM SIP Action that
identified specific state SIP provisions
that were substantially inadequate to
meet the requirements of the Act.’’
Accordingly, the 2020 Memorandum
had no direct impact on the SIP call
issued to Virginia in the 2015 SSM SIP
Action. The 2020 Memorandum did,
however, indicate the EPA’s intent at
the time to review SIP calls that were
issued in the 2015 SSM SIP Action to
determine whether the EPA should
2 October 9, 2020, Memorandum ‘‘Inclusion of
Provisions Governing Periods of Startup,
Shutdown, and Malfunctions in State
Implementation Plans,’’ from Andrew R. Wheeler,
Administrator.
E:\FR\FM\20APP1.SGM
20APP1
24378
Federal Register / Vol. 88, No. 76 / Thursday, April 20, 2023 / Proposed Rules
maintain, modify, or withdraw
particular SIP calls through future
agency actions.
On September 30, 2021, EPA’s Deputy
Administrator withdrew the 2020
Memorandum and announced EPA’s
return to the policy articulated in the
2015 SSM SIP Action (2021
Memorandum).3 As articulated in the
2021 Memorandum, SIP provisions that
contain exemptions or affirmative
defense provisions are not consistent
with CAA requirements and, therefore,
generally are not approvable if
contained in a SIP submission. This
policy approach is intended to ensure
that all communities and populations,
including overburdened communities,
receive the full health and
environmental protections provided by
the CAA.4 The 2021 Memorandum also
retracted the prior statement from the
2020 Memorandum of EPA’s plans to
review and potentially modify or
withdraw particular SIP calls. That
statement no longer reflects the EPA’s
intent. EPA intends to implement the
principles laid out in the 2015 SSM SIP
Action as the agency takes action on SIP
submissions, including Virginia’s SIP
submittal provided in response to the
2015 SIP call.
ddrumheller on DSK120RN23PROD with PROPOSALS1
B. Virginia’s Provision Related to
Emissions Limitations
With respect to the Virginia SIP, in
the 2015 SSM SIP Action, EPA
determined that one provision, 9
Virginia Administrative Code 5–20–
180(G), was substantially inadequate to
meet CAA requirements.5 The 2015
SSM SIP Action raised three separate
concerns regarding 9 Va. Admin. Code
5–20–180(G),6 but it was not clear
whether the provision operated as an
automatic exemption from otherwise
applicable SIP emissions limitations, a
director’s discretion provision allowing
an exemption for excess emissions
during malfunctions because the
provision gives the state the authority to
determine whether a violation ‘‘shall be
judged to have taken place,’’ or an
affirmative defense by which the state
must make a judgment that the event is
not a violation. EPA found in the 2015
SSM SIP Action that any of the three
would render the provision
3 September 30, 2021, Memorandum ‘‘Withdrawal
of the October 9, 2020, Memorandum Addressing
Startup, Shutdown, and Malfunctions in State
Implementation Plans and Implementation of the
Prior Policy,’’ from Janet McCabe, Deputy
Administrator.
4 See 80 FR 33840, 33985, June 12, 2015.
5 Id. at 33961.
6 This document will hereafter use the
abbreviated form of 9 Virginia Administrative Code
§ 5–20–180(G), which is 9VAC5–20–180(G) or 9 Va.
Admin Code. 5–20–180(G).
VerDate Sep<11>2014
20:43 Apr 19, 2023
Jkt 259001
substantially inadequate to comply with
the requirements of the CAA. This
rationale underlying EPA’s
determination that 9VAC5–20–180(G)
was substantially inadequate to meet
CAA requirements, and therefore to
issue a SIP call to Virginia to remedy the
provisions, is detailed in the 2015 SSM
SIP Action and its accompanying
proposals.7
In response to the 2015 SSM SIP
Action, Virginia submitted a SIP
revision on August 1, 2016. The
submission requests the approval of a
revision to 9VAC5–20–180 (Pertaining
to Facility Control Equipment and
Malfunction) as well as several
administrative updates to other portions
of the Virginia Code to add a reference
to 9VAC5–20–180. The revisions in the
August 1, 2016 submission are
discussed more extensively in section II
of this document, but summarized here.
Revision B16, adopted by the
Commonwealth on March 11, 2016
(effective June 1, 2016), contains the
revised portions of 9VAC5–20–180(G)
developed by Virginia to address the
deficiencies cited as substantially
inadequate in the 2015 SSM SIP
Action.8 The second provision, called
Revision D97, originally amended
9VAC5–20–180 on May 21, 2002
(effective August 1, 2002), but this
change to the regulation was not
submitted as a SIP revision until it was
included with Virginia’s 2016 SIP
revision.9 The changes made in the 2002
amendments changed portions of
9VAC5–20–180 that were not subject to
the 2015 SIP call, mainly 9VAC5–20–
180(A) through (C), and 9VAC5–20–
180(H) through (J). Revisions labeled as
C09, D09 and E09 ask EPA to update the
SIP to capture amendments to five
regulations in the Virginia
Administrative Code that are already in
the Virginia SIP. These regulations were
each amended to add a reference to the
provisions in 9VAC5–20–180.10
II. Summary of SIP Revision and EPA
Analysis
A. Revision D97
As discussed in the previous section,
portions of Revision D97 are being
submitted as a SIP revision. See
attachment ‘‘B16–SIP–2b’’ on the 3rd
page of the PDF for the addition/
strikeout copies of the regulation, and
attachment ‘‘B16-sip-signed’’ for the
cover letter accompanying Virginia’s
August 1, 2016, SIP submission, found
7 See 78 FR 12460 at 12498 (February 22, 2013),
79 FR 55920 at 55937 (September 17, 2014).
8 32:18 VA.R. 2422–2423, May 2, 2016.
9 18:21 VA.R. 2793–2818, July 1, 2002.
10 32:7 VA.R. 1153–1191, November 30, 2015.
PO 00000
Frm 00038
Fmt 4702
Sfmt 4702
in the docket for this action, for
additional clarification. In attachment
‘‘B16–SIP–2b,’’ portions of the
regulation not intended for inclusion in
the SIP are redacted from Virginia’s
notice as indicated by the blue boxes
covering the text. The revisions to
9VAC5–20–180 begin on page 10 of the
PDF.11 As noted in the previous section,
the changes in D97 only impact the
‘‘non-SIP called’’ portions of 9VAC5–
20–180 (i.e., 9VAC5–20–180(A) through
(C) and 9VAC5–20–180(H) through (J)).
These changes were adopted by Virginia
on May 21, 2002 but were not submitted
as a SIP revision at that time. It appears
that Virginia is now submitting the 2002
changes embodied in D97 to
demonstrate that these changes went
through the appropriate state notice and
comment procedures required by CAA
section 110. Revision B16 is the most
material to the discussion in this
section, as it is what is currently
adopted and effective in the Virginia
Administrative Code. Revision B16
captures all of the changes made in
revision D97 to 9VAC5–20–180(A)
through (C) and 9VAC5–20–180(H)
through (J).
B. Revision B16
In the 2015 SSM SIP Action, EPA
found that 9VAC5–20–180(G) created an
automatic exemption, an impermissible
director’s discretion exemption, and/or
a director’s discretion determination
that could also be construed as an
impermissible affirmative defense for
violations of emission limits. Revision
B16 removed the discretionary
exemption language from 9VAC5–20–
180(G) and modified several other
sections in 9VAC5–20–180 which
referenced the discretionary exemption.
Prior to Revision B16, 9VAC5–20–
180(G) stated:
No violation of applicable emission
standards or monitoring requirements shall
be judged to have taken place if the excess
emissions or cessation of monitoring
activities is due to a malfunction, provided
that:
(1) The procedural requirements of this
section were met or the owner has submitted
an acceptable application for a variance,
which is subsequently granted;
(2) The owner has taken expeditious and
reasonable measures to minimize emissions
during the breakdown period;
(3) The owner has taken expeditious and
reasonable measures to correct the
malfunction and return the facility to a
normal operation; and
(4) The source is in compliance at least
90% of the operating time over the most
recent 12-month period.
11 18:21
E:\FR\FM\20APP1.SGM
VA.R. 2793 at 2800, July 1, 2002.
20APP1
Federal Register / Vol. 88, No. 76 / Thursday, April 20, 2023 / Proposed Rules
Virginia’s 2016 change to 9VAC5–20–
180(G), embodied in Revision B16,
modified 9VAC5–20–180(G) by
removing any reference to violations.
The updated language in B16 states:
In accordance with subsection C of this
section, if the excess emissions or cessation
of monitoring activities is due to a
malfunction, the owner may demonstrate the
following:
(1) the cause of the excess emissions or
cessation of monitoring activities meets the
definition of malfunction provided in
9VAC5–10–20;
(2) the procedural requirements of this
section were met or the owner has submitted
an acceptable application for a variance,
which is subsequently granted;
(3) the owner has taken expeditious and
reasonable measures to minimize emissions
during the breakdown period;
(4) the owner has taken expeditious and
reasonable measures to correct the
malfunction and return the facility to a
normal operation; and
(5) the source is in compliance with related
applicable emission standards or monitoring
requirements at least 90% of the operating
time over the most recent 12-month period.
The provision which previously
potentially allowed for no violation to
be found was removed, but the criteria
which previously would be used to
judge that no violation occurred remain.
Virginia has not explained the purpose
for the submission of this information,
but EPA interprets the revised 9VAC5–
20–180(G) as a reporting provision only.
EPA finds that this new reporting
provision no longer has the potential to
bar Virginia, the EPA, or citizens from
taking an enforcement action if excess
emissions result from a malfunction of
emission control or monitoring
equipment. The facility may explain the
circumstances surrounding the excess
emission, but the excess emission
would still be a violation of applicable
SIP limitations. In addition to the
change to 9VAC5–20–180(G), Revision
B16 also includes 2016 amendments to
9VAC5–20–180(C) to allow 9VAC5–20–
180(G) to operate properly,12 and to
make several minor administrative
changes. Revision B16 also includes an
amendment to 9VAC5–20–180(F) to add
language stating that if there are
differences in provisions governing
malfunction for sources subject to the
New Source Performance Standards
(NSPS) or National Emission Standards
for Hazardous Air Pollutants (NESHAP)
24379
under 40 CFR parts 60, 61 and 63, the
more restrictive standard shall apply.
C. Revisions C09, D09 and E09
Revisions C09, D09 and E09 contain
updates to five regulations in the
Virginia Administrative Code
addressing control techniques
guidelines (CTGs) for the Northern
Virginia Area which were incorporated
into the Virginia SIP by EPA in 2016.13
These updates add a reference to the
provisions in 9VAC5–20–180. The C09,
D09 and E09 additions each state ‘‘The
provisions of 9VAC5–20–180 (Facility
and control equipment maintenance or
malfunction) apply.’’ See Table 1 in this
document, for a list with the name of
each regulation for which a reference to
9VAC5–20–180 was added. At the time
these regulations were promulgated by
Virginia, there was uncertainty as to the
status of Virginia’s malfunction
regulations so Virginia did not submit
them as a SIP revision. When Virginia
submitted revision B16, it included
Revisions C09, D09 and E09 as part of
the SIP package.
TABLE 1—UPDATED REFERENCES IN REVISIONS C09, D09 AND E09
Revision
Title of regulation updated to reference 9 Va. admin. code
§ 5–20–180
Regulatory citation and updated text
C09 ...................
Article 56. Emission Standards for Letterpress Printing Operations in the Northern Virginia Volatile Organic Compound
Emissions Control Area, 8-Hour Ozone Standard (Rule 4–
56).
Article 56.1. Emission Standards for Offset Lithographic Printing Operations in the Northern Virginia Volatile Organic
Compound Emissions Control Area, 8-hour Ozone Standard (Rule 4–56.1).
Article 57. Emission Standards for Industrial Solvent Cleaning
Operations in the Northern Virginia Volatile Organic Compound Emissions Control Area, 8-hour Ozone Standard
(Rule 4–57).
Article 58. Emissions Standards for Miscellaneous Industrial
Adhesive Application Processes in the Northern Virginia
Volatile Organic Compound Emissions Control Area, 8-hour
Ozone Standard (Rule 4–58).
Article 59. Emission Standards for Miscellaneous Metal Parts
and Products Coating Application Systems in the Northern
Virginia Volatile Organic Compound Emissions Control
Area, 8-hour Ozone Standard (Rule 4–59).
9VAC5–40–8416. Facility and control equipment maintenance
or malfunction.
The provisions of 9VAC5–20–180 (Facility and control equipment maintenance or malfunction) apply.
9VAC5–40–8470. Facility and control equipment maintenance
or malfunction.
The provisions of 9VAC5–20–180 (Facility and control equipment maintenance or malfunction) apply.
9VAC5–40–8640. Facility and control equipment maintenance
or malfunction.
The provisions of 9VAC5–20–180 (Facility and control equipment maintenance or malfunction) apply.
9VAC5–40–8790. Facility and control equipment maintenance
or malfunction.
The provisions of 9VAC5–20–180 (Facility and control equipment maintenance or malfunction) apply.
9VAC5–40–8940. Facility and control equipment maintenance
or malfunction.
The provisions of 9VAC5–20–180 (Facility and Control Equipment Maintenance or Malfunction) apply.
C09 ...................
D09 ...................
D09 ...................
E09 ...................
ddrumheller on DSK120RN23PROD with PROPOSALS1
III. Proposed Action
EPA is proposing to approve the
Virginia SIP revision, submitted August
1, 2016, which addresses the deficiency
cited in EPA’s 2015 SSM SIP Action and
makes other small changes to Virginia’s
SIP. The revision removes the language
from 9VAC5–20–180 which stated that
12 9VAC5–20–180(C) contains requirements a
facility must undertake in the event that ‘‘air
pollution control equipment fails, or malfunctions
VerDate Sep<11>2014
20:43 Apr 19, 2023
Jkt 259001
no violation of applicable emission
standards or monitoring requirements
shall be judged to have taken place if
the excess emissions or cessation of
monitoring activities is due to a
malfunction, under certain
circumstances. EPA is therefore also
proposing to determine that this portion
of Virginia’s 2016 SIP revision corrects
the deficiencies identified in EPA’s
2015 SSM SIP Action. EPA is not
reopening the 2015 SSM SIP Action and
is only taking comment on whether this
SIP revision is consistent with CAA
requirements and whether it addresses
the inadequacies in the specific Virginia
SIP provision (9VAC5–20–180)
identified in the 2015 SSM SIP Action.
. . .’’ Revision B16 adds text to 9VAC5–20–180(C)
which states ‘‘and the demonstrations in subsection
G of this section.’’ making the criteria in 9VAC5–
20–180(G) a reporting requirement.
13 See 81 FR 72711 (October 21, 2016).
PO 00000
Frm 00039
Fmt 4702
Sfmt 4702
E:\FR\FM\20APP1.SGM
20APP1
ddrumheller on DSK120RN23PROD with PROPOSALS1
24380
Federal Register / Vol. 88, No. 76 / Thursday, April 20, 2023 / Proposed Rules
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 § 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
VerDate Sep<11>2014
20:43 Apr 19, 2023
Jkt 259001
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 proposing to
include in a final EPA rule regulatory
text that includes incorporation by
reference. In accordance with
requirements of 1 CFR 51.5, EPA is
proposing to incorporate by reference
the amendments to 9VAC5–20–180
(Pertaining to Facility Control
Equipment and Malfunction), 9VAC5–
40–8416, 9VAC5–40–8470, 9VAC5–40–
8640, 9VAC5–40–8790, and 9VAC5–40–
8940 in section 52.2420, as explained in
Section II of this document. 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
document for more information).
VI. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
PO 00000
Frm 00040
Fmt 4702
Sfmt 4702
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
• 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
E:\FR\FM\20APP1.SGM
20APP1
Federal Register / Vol. 88, No. 76 / Thursday, April 20, 2023 / Proposed Rules
ddrumheller on DSK120RN23PROD with PROPOSALS1
negative environmental consequences of
industrial, governmental, and
commercial operations or programs and
policies.’’ The air agency 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. Due
to the nature of the action being taken
here, this action is expected to have a
neutral to positive impact on the air
quality of the affected area.
Consideration of EJ is not required as
VerDate Sep<11>2014
20:43 Apr 19, 2023
Jkt 259001
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.
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
Startup, Shutdown, and Malfunction
Amendments to Facility and Control
Equipment Maintenance or Malfunction
PO 00000
Frm 00041
Fmt 4702
Sfmt 9990
24381
Regulations 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).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Reporting and recordkeeping
requirements.
Diana Esher,
Acting Regional Administrator, Region III.
[FR Doc. 2023–08235 Filed 4–19–23; 8:45 am]
BILLING CODE 6560–50–P
E:\FR\FM\20APP1.SGM
20APP1
]]>Agencies
[Federal Register Volume 88, Number 76 (Thursday, April 20, 2023)]
[Proposed Rules]
[Pages 24377-24381]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08235]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2023-0104; FRL-10907-01-R3]
Air Plan Approval; Virginia; Startup, Shutdown, and Malfunction
Amendments to Facility and Control Equipment Maintenance or Malfunction
Regulations
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 several state
regulatory changes affecting startup, shutdown and malfunction. This
SIP revision was submitted in response to a finding of substantial
inadequacy and SIP call published on June 12, 2015, for provisions in
the Virginia SIP. EPA is proposing to approve the provisions of the
submitted SIP revision and proposing to determine that the SIP revision
corrects the deficiencies in Virginia's SIP identified in the June 12,
2015 SIP call. This action is being taken under the Clean Air Act
(CAA).
DATES: Written comments must be received on or before May 22, 2023.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2023-0104 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: Sean Silverman, 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) 814-5511. Mr. Silverman can also be reached
via electronic mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
A. EPA's 2015 SSM SIP Action
On February 22, 2013, the EPA issued a Federal Register notice of
proposed rulemaking (the February 2013 Proposal) outlining EPA's policy
at the time with respect to SIP provisions related to periods of
Startup, Shutdown, and Malfunction (SSM). EPA analyzed specific SSM SIP
provisions and explained how each one either did or did not comply with
the CAA with regard to excess emission events.\1\ For each SIP
provision that the EPA determined to be inconsistent with the CAA, the
EPA proposed to find that the existing SIP provision was substantially
inadequate to meet CAA requirements and thus proposed to issue a SIP
call under CAA section 110(k)(5). On September 17, 2014, the EPA issued
a document supplementing and revising what the Agency had previously
proposed on February 22, 2013 (the supplemental notice of proposed
rulemaking (SNPR)), in light of a D.C. Circuit decision that determined
the CAA precludes authority of the EPA to create affirmative defense
provisions. EPA outlined its updated policy that affirmative defense
SIP provisions are not consistent with CAA requirements. EPA proposed
in the supplemental proposal document to apply its revised
interpretation of the CAA to specific affirmative defense SIP
provisions and proposed SIP calls for those provisions where
appropriate (79 FR 55920, September 17, 2014).
---------------------------------------------------------------------------
\1\ State Implementation Plans: Response to Petition for
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To
Amend Provisions Applying to Excess Emissions During Periods of
Startup, Shutdown, and Malfunction, 78 FR 12460 (February 22, 2013).
---------------------------------------------------------------------------
On June 12, 2015, pursuant to CAA section 110(k)(5), the EPA
finalized ``State Implementation Plans: Response to Petition for
Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to
SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend
Provisions Applying to Excess Emissions During Periods of Startup,
Shutdown and Malfunction,'' (80 FR 33839, June 12, 2015), hereafter
referred to as the ``2015 SSM SIP Action.'' The 2015 SSM SIP Action
clarified, restated, and updated the EPA's interpretation that SSM
exemptions (whether automatic or discretionary) and affirmative defense
SIP provisions are inconsistent with CAA requirements. The 2015 SSM SIP
Action found that certain SIP provisions in 36 states were
substantially inadequate to meet CAA requirements and issued a SIP call
to those states to submit SIP revisions to address the inadequacies.
EPA established an 18-month deadline by which the affected states had
to submit such SIP revisions. States were required to submit corrective
revisions to their SIPs in response to the SIP calls by November 22,
2016. One regulation in Virginia's SIP was included in the 2015 SSM SIP
Action. 80 FR 33840 at 33961 (June 12, 2015).
EPA issued a Memorandum in October 2020 (2020 Memorandum), which
stated that certain provisions governing SSM periods in SIPs could be
viewed as consistent with CAA requirements.\2\ Importantly, the 2020
Memorandum stated that it ``did not alter in any way the determinations
made in the 2015 SSM SIP Action that identified specific state SIP
provisions that were substantially inadequate to meet the requirements
of the Act.'' Accordingly, the 2020 Memorandum had no direct impact on
the SIP call issued to Virginia in the 2015 SSM SIP Action. The 2020
Memorandum did, however, indicate the EPA's intent at the time to
review SIP calls that were issued in the 2015 SSM SIP Action to
determine whether the EPA should
[[Page 24378]]
maintain, modify, or withdraw particular SIP calls through future
agency actions.
---------------------------------------------------------------------------
\2\ October 9, 2020, Memorandum ``Inclusion of Provisions
Governing Periods of Startup, Shutdown, and Malfunctions in State
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
---------------------------------------------------------------------------
On September 30, 2021, EPA's Deputy Administrator withdrew the 2020
Memorandum and announced EPA's return to the policy articulated in the
2015 SSM SIP Action (2021 Memorandum).\3\ As articulated in the 2021
Memorandum, SIP provisions that contain exemptions or affirmative
defense provisions are not consistent with CAA requirements and,
therefore, generally are not approvable if contained in a SIP
submission. This policy approach is intended to ensure that all
communities and populations, including overburdened communities,
receive the full health and environmental protections provided by the
CAA.\4\ The 2021 Memorandum also retracted the prior statement from the
2020 Memorandum of EPA's plans to review and potentially modify or
withdraw particular SIP calls. That statement no longer reflects the
EPA's intent. EPA intends to implement the principles laid out in the
2015 SSM SIP Action as the agency takes action on SIP submissions,
including Virginia's SIP submittal provided in response to the 2015 SIP
call.
---------------------------------------------------------------------------
\3\ September 30, 2021, Memorandum ``Withdrawal of the October
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions
in State Implementation Plans and Implementation of the Prior
Policy,'' from Janet McCabe, Deputy Administrator.
\4\ See 80 FR 33840, 33985, June 12, 2015.
---------------------------------------------------------------------------
B. Virginia's Provision Related to Emissions Limitations
With respect to the Virginia SIP, in the 2015 SSM SIP Action, EPA
determined that one provision, 9 Virginia Administrative Code 5-20-
180(G), was substantially inadequate to meet CAA requirements.\5\ The
2015 SSM SIP Action raised three separate concerns regarding 9 Va.
Admin. Code 5-20-180(G),\6\ but it was not clear whether the provision
operated as an automatic exemption from otherwise applicable SIP
emissions limitations, a director's discretion provision allowing an
exemption for excess emissions during malfunctions because the
provision gives the state the authority to determine whether a
violation ``shall be judged to have taken place,'' or an affirmative
defense by which the state must make a judgment that the event is not a
violation. EPA found in the 2015 SSM SIP Action that any of the three
would render the provision substantially inadequate to comply with the
requirements of the CAA. This rationale underlying EPA's determination
that 9VAC5-20-180(G) was substantially inadequate to meet CAA
requirements, and therefore to issue a SIP call to Virginia to remedy
the provisions, is detailed in the 2015 SSM SIP Action and its
accompanying proposals.\7\
---------------------------------------------------------------------------
\5\ Id. at 33961.
\6\ This document will hereafter use the abbreviated form of 9
Virginia Administrative Code Sec. 5-20-180(G), which is 9VAC5-20-
180(G) or 9 Va. Admin Code. 5-20-180(G).
\7\ See 78 FR 12460 at 12498 (February 22, 2013), 79 FR 55920 at
55937 (September 17, 2014).
---------------------------------------------------------------------------
In response to the 2015 SSM SIP Action, Virginia submitted a SIP
revision on August 1, 2016. The submission requests the approval of a
revision to 9VAC5-20-180 (Pertaining to Facility Control Equipment and
Malfunction) as well as several administrative updates to other
portions of the Virginia Code to add a reference to 9VAC5-20-180. The
revisions in the August 1, 2016 submission are discussed more
extensively in section II of this document, but summarized here.
Revision B16, adopted by the Commonwealth on March 11, 2016 (effective
June 1, 2016), contains the revised portions of 9VAC5-20-180(G)
developed by Virginia to address the deficiencies cited as
substantially inadequate in the 2015 SSM SIP Action.\8\ The second
provision, called Revision D97, originally amended 9VAC5-20-180 on May
21, 2002 (effective August 1, 2002), but this change to the regulation
was not submitted as a SIP revision until it was included with
Virginia's 2016 SIP revision.\9\ The changes made in the 2002
amendments changed portions of 9VAC5-20-180 that were not subject to
the 2015 SIP call, mainly 9VAC5-20-180(A) through (C), and 9VAC5-20-
180(H) through (J). Revisions labeled as C09, D09 and E09 ask EPA to
update the SIP to capture amendments to five regulations in the
Virginia Administrative Code that are already in the Virginia SIP.
These regulations were each amended to add a reference to the
provisions in 9VAC5-20-180.\10\
---------------------------------------------------------------------------
\8\ 32:18 VA.R. 2422-2423, May 2, 2016.
\9\ 18:21 VA.R. 2793-2818, July 1, 2002.
\10\ 32:7 VA.R. 1153-1191, November 30, 2015.
---------------------------------------------------------------------------
II. Summary of SIP Revision and EPA Analysis
A. Revision D97
As discussed in the previous section, portions of Revision D97 are
being submitted as a SIP revision. See attachment ``B16-SIP-2b'' on the
3rd page of the PDF for the addition/strikeout copies of the
regulation, and attachment ``B16-sip-signed'' for the cover letter
accompanying Virginia's August 1, 2016, SIP submission, found in the
docket for this action, for additional clarification. In attachment
``B16-SIP-2b,'' portions of the regulation not intended for inclusion
in the SIP are redacted from Virginia's notice as indicated by the blue
boxes covering the text. The revisions to 9VAC5-20-180 begin on page 10
of the PDF.\11\ As noted in the previous section, the changes in D97
only impact the ``non-SIP called'' portions of 9VAC5-20-180 (i.e.,
9VAC5-20-180(A) through (C) and 9VAC5-20-180(H) through (J)). These
changes were adopted by Virginia on May 21, 2002 but were not submitted
as a SIP revision at that time. It appears that Virginia is now
submitting the 2002 changes embodied in D97 to demonstrate that these
changes went through the appropriate state notice and comment
procedures required by CAA section 110. Revision B16 is the most
material to the discussion in this section, as it is what is currently
adopted and effective in the Virginia Administrative Code. Revision B16
captures all of the changes made in revision D97 to 9VAC5-20-180(A)
through (C) and 9VAC5-20-180(H) through (J).
---------------------------------------------------------------------------
\11\ 18:21 VA.R. 2793 at 2800, July 1, 2002.
---------------------------------------------------------------------------
B. Revision B16
In the 2015 SSM SIP Action, EPA found that 9VAC5-20-180(G) created
an automatic exemption, an impermissible director's discretion
exemption, and/or a director's discretion determination that could also
be construed as an impermissible affirmative defense for violations of
emission limits. Revision B16 removed the discretionary exemption
language from 9VAC5-20-180(G) and modified several other sections in
9VAC5-20-180 which referenced the discretionary exemption. Prior to
Revision B16, 9VAC5-20-180(G) stated:
No violation of applicable emission standards or monitoring
requirements shall be judged to have taken place if the excess
emissions or cessation of monitoring activities is due to a
malfunction, provided that:
(1) The procedural requirements of this section were met or the
owner has submitted an acceptable application for a variance, which
is subsequently granted;
(2) The owner has taken expeditious and reasonable measures to
minimize emissions during the breakdown period;
(3) The owner has taken expeditious and reasonable measures to
correct the malfunction and return the facility to a normal
operation; and
(4) The source is in compliance at least 90% of the operating
time over the most recent 12-month period.
[[Page 24379]]
Virginia's 2016 change to 9VAC5-20-180(G), embodied in Revision
B16, modified 9VAC5-20-180(G) by removing any reference to violations.
The updated language in B16 states:
In accordance with subsection C of this section, if the excess
emissions or cessation of monitoring activities is due to a
malfunction, the owner may demonstrate the following:
(1) the cause of the excess emissions or cessation of monitoring
activities meets the definition of malfunction provided in 9VAC5-10-
20;
(2) the procedural requirements of this section were met or the
owner has submitted an acceptable application for a variance, which
is subsequently granted;
(3) the owner has taken expeditious and reasonable measures to
minimize emissions during the breakdown period;
(4) the owner has taken expeditious and reasonable measures to
correct the malfunction and return the facility to a normal
operation; and
(5) the source is in compliance with related applicable emission
standards or monitoring requirements at least 90% of the operating
time over the most recent 12-month period.
The provision which previously potentially allowed for no violation
to be found was removed, but the criteria which previously would be
used to judge that no violation occurred remain. Virginia has not
explained the purpose for the submission of this information, but EPA
interprets the revised 9VAC5-20-180(G) as a reporting provision only.
EPA finds that this new reporting provision no longer has the potential
to bar Virginia, the EPA, or citizens from taking an enforcement action
if excess emissions result from a malfunction of emission control or
monitoring equipment. The facility may explain the circumstances
surrounding the excess emission, but the excess emission would still be
a violation of applicable SIP limitations. In addition to the change to
9VAC5-20-180(G), Revision B16 also includes 2016 amendments to 9VAC5-
20-180(C) to allow 9VAC5-20-180(G) to operate properly,\12\ and to make
several minor administrative changes. Revision B16 also includes an
amendment to 9VAC5-20-180(F) to add language stating that if there are
differences in provisions governing malfunction for sources subject to
the New Source Performance Standards (NSPS) or National Emission
Standards for Hazardous Air Pollutants (NESHAP) under 40 CFR parts 60,
61 and 63, the more restrictive standard shall apply.
---------------------------------------------------------------------------
\12\ 9VAC5-20-180(C) contains requirements a facility must
undertake in the event that ``air pollution control equipment fails,
or malfunctions . . .'' Revision B16 adds text to 9VAC5-20-180(C)
which states ``and the demonstrations in subsection G of this
section.'' making the criteria in 9VAC5-20-180(G) a reporting
requirement.
---------------------------------------------------------------------------
C. Revisions C09, D09 and E09
Revisions C09, D09 and E09 contain updates to five regulations in
the Virginia Administrative Code addressing control techniques
guidelines (CTGs) for the Northern Virginia Area which were
incorporated into the Virginia SIP by EPA in 2016.\13\ These updates
add a reference to the provisions in 9VAC5-20-180. The C09, D09 and E09
additions each state ``The provisions of 9VAC5-20-180 (Facility and
control equipment maintenance or malfunction) apply.'' See Table 1 in
this document, for a list with the name of each regulation for which a
reference to 9VAC5-20-180 was added. At the time these regulations were
promulgated by Virginia, there was uncertainty as to the status of
Virginia's malfunction regulations so Virginia did not submit them as a
SIP revision. When Virginia submitted revision B16, it included
Revisions C09, D09 and E09 as part of the SIP package.
---------------------------------------------------------------------------
\13\ See 81 FR 72711 (October 21, 2016).
Table 1--Updated References in Revisions C09, D09 and E09
------------------------------------------------------------------------
Title of regulation
updated to reference Regulatory citation
Revision 9 Va. admin. code and updated text
Sec. 5-20-180
------------------------------------------------------------------------
C09......................... Article 56. Emission 9VAC5-40-8416.
Standards for Facility and
Letterpress control equipment
Printing Operations maintenance or
in the Northern malfunction.
Virginia Volatile The provisions of
Organic Compound 9VAC5-20-180
Emissions Control (Facility and
Area, 8-Hour Ozone control equipment
Standard (Rule 4- maintenance or
56). malfunction) apply.
C09......................... Article 56.1. 9VAC5-40-8470.
Emission Standards Facility and
for Offset control equipment
Lithographic maintenance or
Printing Operations malfunction.
in the Northern The provisions of
Virginia Volatile 9VAC5-20-180
Organic Compound (Facility and
Emissions Control control equipment
Area, 8-hour Ozone maintenance or
Standard (Rule 4- malfunction) apply.
56.1).
D09......................... Article 57. Emission 9VAC5-40-8640.
Standards for Facility and
Industrial Solvent control equipment
Cleaning Operations maintenance or
in the Northern malfunction.
Virginia Volatile The provisions of
Organic Compound 9VAC5-20-180
Emissions Control (Facility and
Area, 8-hour Ozone control equipment
Standard (Rule 4- maintenance or
57). malfunction) apply.
D09......................... Article 58. 9VAC5-40-8790.
Emissions Standards Facility and
for Miscellaneous control equipment
Industrial Adhesive maintenance or
Application malfunction.
Processes in the The provisions of
Northern Virginia 9VAC5-20-180
Volatile Organic (Facility and
Compound Emissions control equipment
Control Area, 8- maintenance or
hour Ozone Standard malfunction) apply.
(Rule 4-58).
E09......................... Article 59. Emission 9VAC5-40-8940.
Standards for Facility and
Miscellaneous Metal control equipment
Parts and Products maintenance or
Coating Application malfunction.
Systems in the The provisions of
Northern Virginia 9VAC5-20-180
Volatile Organic (Facility and
Compound Emissions Control Equipment
Control Area, 8- Maintenance or
hour Ozone Standard Malfunction) apply.
(Rule 4-59).
------------------------------------------------------------------------
III. Proposed Action
EPA is proposing to approve the Virginia SIP revision, submitted
August 1, 2016, which addresses the deficiency cited in EPA's 2015 SSM
SIP Action and makes other small changes to Virginia's SIP. The
revision removes the language from 9VAC5-20-180 which stated that no
violation of applicable emission standards or monitoring requirements
shall be judged to have taken place if the excess emissions or
cessation of monitoring activities is due to a malfunction, under
certain circumstances. EPA is therefore also proposing to determine
that this portion of Virginia's 2016 SIP revision corrects the
deficiencies identified in EPA's 2015 SSM SIP Action. EPA is not
reopening the 2015 SSM SIP Action and is only taking comment on whether
this SIP revision is consistent with CAA requirements and whether it
addresses the inadequacies in the specific Virginia SIP provision
(9VAC5-20-180) identified in the 2015 SSM SIP Action.
[[Page 24380]]
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 proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by
reference the amendments to 9VAC5-20-180 (Pertaining to Facility
Control Equipment and Malfunction), 9VAC5-40-8416, 9VAC5-40-8470,
9VAC5-40-8640, 9VAC5-40-8790, and 9VAC5-40-8940 in section 52.2420, as
explained in Section II of this document. 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 document for more information).
VI. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, 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
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
[[Page 24381]]
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.'' The air agency 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. Due to the nature of
the action being taken here, this action is expected to have a neutral
to positive impact on the air quality of the affected area.
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.
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 Startup, Shutdown,
and Malfunction Amendments to Facility and Control Equipment
Maintenance or Malfunction Regulations 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).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Reporting and recordkeeping requirements.
Diana Esher,
Acting Regional Administrator, Region III.
[FR Doc. 2023-08235 Filed 4-19-23; 8:45 am]
BILLING CODE 6560-50-P
