[Federal Register Volume 87, Number 175 (Monday, September 12, 2022)]
[Rules and Regulations]
[Pages 55697-55699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-19552]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2021-0855; FRL-8941-02-R3]


Air Plan Approval; Virginia; Negative Declaration Certification 
for the 2015 Ozone National Ambient Air Quality Standard for the 2016 
Oil and Natural Gas Control Techniques Guidelines

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 provides Virginia's determination for the 2015 
Ozone national ambient air quality standards (NAAQS), via a negative 
declaration, that there are no sources within the Northern Virginia 
volatile organic compound (VOC) Emissions Control Area subject to EPA's 
2016 Oil and Natural Gas control techniques guidelines (2016 Oil and 
Gas CTG). The negative declaration covers only the 2016 Oil and Gas CTG 
and asserts that there are no sources subject to this CTG located in 
the Northern Virginia VOC Emissions Control Area. EPA is approving 
these revisions to the Virginia SIP in accordance with the requirements 
of the Clean Air Act (CAA).

DATES: This final rule is effective on October 12, 2022.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2021-0855. All documents in the docket are listed on 
the www.regulations.gov website. Although listed in the index, some 
information is not publicly available, e.g., confidential business 
information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available through //
www.regulations.gov, or please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: Om P. Devkota, 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) 814-2172. Mr. Devkota can also be reached via 
electronic mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On June 27, 2022 (87 FR 38046), EPA published a notice of proposed 
rulemaking (NPRM) for the Commonwealth of Virginia. In the NPRM, EPA 
proposed approval of a state implementation plan (SIP) revision 
submitted by the Commonwealth of Virginia. This revision provides 
Virginia's determination for the 2015 Ozone NAAQS, via a negative 
declaration, that there are no sources within the Northern Virginia VOC 
Emissions Control Area subject to EPA's 2016 Oil and Gas CTG. The 2016 
Oil and Gas CTG provides information to state, local, and tribal air 
agencies to assist them in determining reasonably available control 
technology (RACT) for VOC emissions from select oil and natural gas 
industry emission sources. Section 182(b)(2)(A) of the CAA requires 
that for ozone nonattainment areas classified as Moderate or above, 
states must revise their SIPs to include provisions to implement RACT 
for each category of VOC sources covered by a CTG document issued 
between November 15, 1990, and the date of attainment. Section 
184(b)(1)(B) of the CAA extends this requirement to states and areas in 
the Ozone Transport Region (OTR). The term ``negative declaration'' 
means that the State has explored whether any facilities meeting the 
applicability requirements of the CTG exist within the State and 
concluded that there are no such sources. The negative declaration 
covers only the 2016 Oil and Gas CTG and asserts that there are no 
sources subject to this CTG located in the Northern Virginia VOC 
Emissions Control Area. The formal SIP revision was submitted by 
Virginia on August 9, 2021. States with no applicable sources for a 
specific CTG may submit as a SIP revision a negative declaration 
stating that there are no applicable sources in the state.

II. Summary of SIP Revision and EPA Analysis

    The Northern Virginia area consisting of Arlington County, Fairfax 
County, Loudoun County, Prince William County, Stafford County, 
Alexandria City, Fairfax City, Falls Church City, Manassas City, and 
Manassas Park City is in the OTR and is subject to this 2016 Oil and 
Natural Gas CTG. According to Virginia's August 9, 2021 submittal, 
VADEQ conducted a review of potential sources subject to the 2016 Oil 
and Gas CTG and found that there are no sources located in the Northern 
Virginia area subject to the terms of this CTG for purposes of the 2015 
ozone NAAQS. Notwithstanding VADEQ's finding that there are no VOC 
sources in the Northern Virginia area subjected to RACT by the 2016 Oil 
and Gas CTG, VADEQ identified facilities in Northern Virginia defined 
by the 2016 Oil and Gas CTG as part of the oil and natural gas 
industry. Specifically, VADEQ identified certain natural gas compressor 
stations in the Northern Virginia area, but determined that these are 
``downstream'' of the point of custody transfer to the natural gas 
transmission and storage segment. Compressor stations located in the 
transmission and storage segment of the oil and gas industry are not 
subject to any RACT requirements specified by the 2016 Oil and Gas CTG.
    Other specific requirements of Virginia's negative declaration 
certification for the 2016 Oil and Natural Gas CTG for the 2015 Ozone 
NAAQS and the rationale for EPA's proposed action are explained in the 
NPRM, and will not be restated here. No public comments were received 
on the NPRM.

III. Final Action

    EPA is approving the Negative Declaration Certification for the 
2016 Oil and Natural Gas Control Techniques Guidelines for the 2015 
Ozone NAAQS as a revision to the Virginia SIP.

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

[[Page 55698]]

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. 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);
     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
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    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).

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by November 14, 2022. 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 is a negative declaration for the 2016 Oil 
and Gas CTG for the Commonwealth of Virginia may not be challenged 
later in

[[Page 55699]]

proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

Diana Esher,
Acting 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 (e)(1) is amended by adding 
the entry ``CTG Negative Declarations Certification for the 2015 Ozone 
National Ambient Air Quality Standard for the 2016 Oil and Gas CTG'' at 
the end of the table to read as follows:


Sec.  52.2420   Identification of plan.

* * * * *
    (e) * * *
    (1) * * *

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    Name of non-regulatory SIP          Applicable           State                                Additional
             revision               geographical area   submittal date   EPA approval date       explanation
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                                                  * * * * * * *
CTG Negative Declaration           Northern Virginia            8/9/21  9/12/22, [Insert     Certifies negative
 Certification for the 2015 Ozone   VOC emissions                        Federal Register     declaration for
 National Ambient Air Quality       control area.                        citation].           the 2016 Oil and
 Standard for the 2016 Oil and                                                                Gas CTG.
 Gas CTG.
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[FR Doc. 2022-19552 Filed 9-9-22; 8:45 am]
BILLING CODE 6560-50-P


