[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]


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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.

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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).
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    \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).
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    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.
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    \2\ October 9, 2020, Memorandum ``Inclusion of Provisions 
Governing Periods of Startup, Shutdown, and Malfunctions in State 
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
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    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.
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    \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.
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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\
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    \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).
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    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\
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    \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.
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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).
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    \11\ 18:21 VA.R. 2793 at 2800, July 1, 2002.
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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.
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    \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.
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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.
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    \13\ See 81 FR 72711 (October 21, 2016).

        Table 1--Updated References in Revisions C09, D09 and E09
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                               Title of regulation
                              updated to reference   Regulatory citation
          Revision              9 Va. admin. code     and updated text
                                 Sec.   5-20-180
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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).
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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


