[Federal Register Volume 88, Number 119 (Thursday, June 22, 2023)]
[Rules and Regulations]
[Pages 40715-40719]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-13147]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2023-0104; FRL10907-02-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: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a state 
implementation plan (SIP) revision submitted by the Commonwealth of 
Virginia. The revision 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 approving these revisions to the Virginia SIP and determining 
that the SIP revision corrects the deficiencies in the Virginia SIP 
identified in the June 12, 2015 SIP call. This action is being taken in 
accordance with the requirements of the Clean Air Act (CAA).

DATES: This final rule is effective on July 24, 2023.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2023-0104. All documents in the docket are listed on 
the www.regulations.gov website. Although listed in the index, some 
information is not publicly available,

[[Page 40716]]

e.g., confidential business information (CBI) or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available through www.regulations.gov, or please contact 
the person identified in the For Further Information Contact section 
for additional availability information.

FOR FURTHER INFORMATION CONTACT: Sean Silverman, 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) 814-5511. Mr. Silverman can also be reached via electronic mail 
at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On April 20, 2023 (88 FR 24377), EPA proposed to approve a SIP 
revision submitted by the Commonwealth of Virginia through the Virginia 
Department of Environmental Quality (VADEQ) on August 1, 2016. In that 
proposal we proposed to determine that the SIP revision corrects the 
deficiencies with respect to Virginia's SIP that were identified in the 
June 12, 2015 action entitled ``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'' (2015 SSM SIP Action). 80 FR 33840 
(June 12, 2015). The reasons for our proposed approval and 
determination are stated in the proposal for this action and will not 
be restated here. 88 FR 24377 (April 20, 2023). The public comment 
period for our proposed approval and determination ended on May 22, 
2023. Two comments were received and are described below in section III 
of this preamble.

II. Summary of Virginia's SIP Revision Related to This Action

    With respect to the Virginia SIP, in the 2015 SSM SIP Action, EPA 
determined that one provision, 9 Virginia Administrative Code (VAC) 5-
20-180(G), was substantially inadequate to meet CAA requirements.\1\ In 
the August 1, 2016 SIP revision, Virginia amended the portion of 9VAC5-
20-180(G) \2\ to address the deficiencies in the 2015 SSM SIP Action, 
and made several other administrative amendments in 9VAC5-20-180 and 
other sections.\3\ In this action, EPA is determining Virginia's August 
1, 2016 SIP revision addressed the provision identified as 
substantially inadequate in the 2015 SSM SIP Action. Additionally, EPA 
has identified a typographical error previously incorporated by 
reference in the Code of Federal Regulations (CFR) for one of the 
provisions being updated in this notice. This final rule contains the 
text to correct this error in the amendments to 40 CFR part 52 set 
forth below.
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    \1\ See 80 FR 33840 at 33961 (June 12, 2015).
    \2\ This document will hereafter use the abbreviated form of 9 
Virginia Administrative Code (VAC) Sec.  5-20-180(G), which is 
9VAC5-20-180(G) or 9 Va. Admin Code. 5-20-180(G).
    \3\ Administrative changes to other sections consist of 
references to 9VAC5-20-180 added to 9VAC5-40-8416, 9VAC5-40-8470, 
9VAC5-40-8640, 9VAC5-40-8790 and 9VAC5-40-8940 to state ``The 
provisions of 9VAC5-20-180 (Facility and control equipment 
maintenance or malfunction) apply.''
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    Other specific requirements of Virginia's August 1, 2016 submittal 
and the rationale for EPA's proposed action are explained in the notice 
of proposed rulemaking (NPRM) and will not be restated here.

III. EPA's Response to Comments Received

    EPA received two sets of comments in response to the NPRM that are 
available in the docket for this action. Of these two sets of comments, 
one was outside of the scope of this rulemaking. The other comment, 
submitted by the Sierra Club, was supportive. As such, neither of these 
comments require a response by EPA.

IV. Final Action

    EPA is approving Virginia's August 1, 2016 SIP revision as a 
revision to the Virginia SIP. EPA has determined that the amendments in 
the August 1, 2016 SIP revision correct the deficiencies identified in 
the 2015 SSM SIP Action.

V. 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

[[Page 40717]]

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.

VI. Incorporation by Reference

    In this document, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference of Virginia's 
Revised 9VAC5-20-180 (Pertaining to Facility Control Equipment and 
Malfunction) which regulates periods of excess emissions from the 
shutdown or bypassing of emissions control equipment for maintenance, 
and malfunction of emissions control equipment or sources at affected 
facilities, including 9VAC5-40-8416 (Letterpress Printing Operations), 
9VAC5-40-8470 (Offset Lithographic Printing Operations), 9VAC5-40-8640 
(Industrial Solvent Cleaning Operations), 9VAC5-40-8790 (Miscellaneous 
Industrial Adhesive Application Processes), and 9VAC5-40-8940 
(Miscellaneous Metal Parts and Products Coating Application Systems) in 
section 52.2420, which corrects the deficiency in the Virginia SIP, as 
set forth below in the amendments to 40 CFR part 52. EPA has made, and 
will continue to make, these materials generally available through 
www.regulations.gov and at the EPA Region III Office (please contact 
the person identified in the For Further Information Contact section of 
this preamble for more information). Therefore, these materials have 
been approved by EPA for inclusion in the SIP, have been incorporated 
by reference by EPA into that plan, are fully federally enforceable 
under sections 110 and 113 of the CAA as of the effective date of the 
final rulemaking of EPA's approval, and will be incorporated by 
reference in the next update to the SIP compilation.\4\
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    \4\ 62 FR 27968 (May 22, 1997).
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VII. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001); and
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act.
    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 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. 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.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it

[[Page 40718]]

is published in the Federal Register. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by August 21, 2023. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action which corrects the deficiencies in Virginia's SIP 
identified in the 2015 SSM SIP Action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Reporting and recordkeeping requirements.

Adam Ortiz,
Regional Administrator, Region III.

    For the reasons stated in the preamble, the EPA amends 40 CFR part 
52 as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart VV--Virginia

0
2. In Sec.  52.2420, the table in paragraph (c) is amended by:
0
a. Revising the entry ``5-20-180'';
0
b. Adding the entry ``5-40-8416'' in numerical order under the heading 
``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)'';
0
c. Adding the entry ``5-40-8470'' in numerical order under the heading 
``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)'';
0
d. Adding the entry ``8-40-8640'' in numerical order under the heading 
``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)'';
0
e. Adding the entry ``5-40-8790'' in numerical order under the heading 
``Article 58. Emission Standards for Miscellaneous Industrial Adhesive 
Application Processes in the Northern Virginia Volatile Organic 
Compound Emissions Control Area, 8-hour Ozone Standard (Rule 4-58)'';
0
f. Removing the subject heading ``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 4-58)'' and adding the subject heading 
``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)'' in its place; and
0
g. Adding the entry ``5-40-8940'' in numerical order under the new 
heading ``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)''.
    The revision and additions read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

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                                                           State                             Explanation [former
        State citation             Title/subject      effective date    EPA approval date       SIP citation]
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                                                  * * * * * * *
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                                     9 VAC 5, Chapter 20 General Provisions
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                                                  * * * * * * *
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                                          Part II Air Quality Programs
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                                                  * * * * * * *
5-20-180.....................  Facility and control         6/1/2016  6/22/2023, [INSERT    Revised 9VAC5-20-
                                equipment                              FEDERAL REGISTER      180(A) through
                                maintenance or                         CITATION].            9VAC5-20-180(D) and
                                malfunction.                                                 9VAC5-20-180(F)
                                                                                             through 9VAC5-20-
                                                                                             180(J).
 
                                                  * * * * * * *
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                            9 VAC 5, Chapter 40 Existing Stationary Sources [Part IV]
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                                                  * * * * * * *
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                                           Part II Emission Standards
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                                                  * * * * * * *
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  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)
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[[Page 40719]]

 
                                                  * * * * * * *
5-40-8416....................  Facility and control         2/1/2016  6/22/2023, [INSERT    Added.
                                equipment                              FEDERAL REGISTER
                                maintenance or                         CITATION].
                                malfunction.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
 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)
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
5-40-8470....................  Facility and control         2/1/2016  6/22/2023, [INSERT    Added.
                                equipment                              FEDERAL REGISTER
                                maintenance or                         CITATION].
                                malfunction.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
   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)
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
8-40-8640....................  Facility and control         2/1/2016  6/22/2023, [INSERT    Added.
                                equipment                              FEDERAL REGISTER
                                maintenance or                         CITATION].
                                malfunction.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
   Article 58. Emission Standards for Miscellaneous Industrial Adhesive Application Processes in the Northern
          Virginia Volatile Organic Compound Emissions Control Area, 8-hour Ozone Standard (Rule 4-58)
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
5-40-8790....................  Facility and control         2/1/2016  6/22/2023, [INSERT    Added.
                                equipment                              FEDERAL REGISTER
                                maintenance or                         CITATION].
                                malfunction.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
  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)
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
5-40-8940....................  Facility and control         2/1/2016  6/22/2023, [INSERT    Added.
                                equipment                              FEDERAL REGISTER
                                maintenance or                         CITATION].
                                malfunction.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

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[FR Doc. 2023-13147 Filed 6-21-23; 8:45 am]
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