[Federal Register Volume 86, Number 26 (Wednesday, February 10, 2021)]
[Rules and Regulations]
[Pages 8868-8872]
[FR Doc No: 2021-02594]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2020-0283; FRL-10016-88-Region 3]

Air Plan Approval; Virginia; Negative Declarations Certification
for the 2008 Ozone National Ambient Air Quality Standard Including 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
portion of a state implementation plan (SIP) revision submitted by the
Commonwealth of Virginia. The portion for approval consists of negative
declarations for certain specified Control Techniques Guidelines (CTG),
including the 2016 Oil and Natural Gas CTG (2016 Oil and Gas CTG), as
well as a number of other negative declarations for Alternative Control
Techniques (ACTs) for the 2008 ozone National Ambient Air Quality
Standard (NAAQS). The negative declarations cover only those CTGs or
ACTs for which there are no sources subject to those CTGs or ACTs
located in the Northern Virginia Volatile Organic Compound (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 March 12, 2021.

ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2020-0283. All documents in the docket are listed on
the https://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
https://www.regulations.gov, or please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section for additional availability
information.

FOR FURTHER INFORMATION CONTACT: Erin Trouba, Planning & Implementation
Branch (3AD30), Air & Radiation Division, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street, Philadelphia, PA 19103. The
telephone number is<PHONE_NUMBER>. Ms. Trouba can also be reached via
electronic mail at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

    On July 16, 2020 (85 FR 43187), EPA published a notice of proposed
rulemaking (NPRM) pertaining to part of a SIP submittal from the
Commonwealth of Virginia. In the NPRM, EPA proposed approval of
negative declarations for certain specified CTGs, including the 2016
Oil and Gas CTG, as well as a number of other negative declarations for
ACTs for the 2008 ozone NAAQS.\1\ Virginia's negative declarations
cover the Northern Virginia area that was designated nonattainment for
the 2008 ozone NAAQS and/or included as part of the Ozone Transport
Region (OTR) by CAA section 184(a).\2\ The SIP revision that EPA is
taking final action to approve in this action was submitted to EPA by
the Virginia Department of Environmental Quality (VADEQ) on April 2,
2020. For additional information on the scope of the SIP submittal and
the specific CTGs and ACTs for which VADEQ submitted a negative
declaration, please see the NPRM.
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    \1\ See the NPRM for the list of negative declarations that the
Commonwealth submitted for Northern Virginia, and which EPA is
acting on here.
    \2\ The Northern Virginia area consists 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.
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    The CAA regulates emissions of nitrogen oxides (NOX) and
VOCs to prevent photochemical reactions that result in ozone formation.
Reasonably available control technology (RACT) is a strategy for
reducing NOX and VOC emissions from stationary sources
within areas not meeting the ozone NAAQS, and for areas within the OTR.
EPA has consistently defined RACT as the lowest emission limit that a
particular source is capable of meeting by the application of the
control technology that is reasonably available considering
technological and economic feasibility. CTGs and ACTs form

important components of the guidance that EPA provides to states for
making RACT determinations. CTGs are used to presumptively define VOC
RACT for applicable source categories of VOCs. ACTs describe an
available range of control technologies and their respective cost
effectiveness for particular source categories, but do not identify any
particular option as the presumptive norm for what is RACT.
    On March 6, 2016 (80 FR 12264), EPA issued a final rule entitled
``Implementation of the 2008 National Ambient Air Quality Standards for
Ozone: State Implementation Plan Requirements'' (2008 Ozone
Implementation Rule). In the preamble to the final rule, EPA makes
clear that if there are no sources covered by a specific CTG source
category located in an ozone nonattainment area or an area in the OTR,
the state may submit a negative declaration for that CTG. 80 FR 12264,
12278.

II. Summary of SIP Revision and EPA Analysis

    In its April 2, 2020 submittal, VADEQ certified to EPA that the
Northern Virginia area has met all of the CAA RACT implementation
requirements for the 2008 ozone NAAQS, including CAA sections 182(b)(2)
and 184(b)(1)(B). However, this final rule only addresses section 2.2
of the April 2, 2020 submittal, which contains negative declarations
for certain CTGs and ACTs in the Northern Virginia area, as described
in the NPRM. EPA notes that Virginia's April 2, 2020 SIP submission
also addresses RACT for major sources of NOX and VOC in the
Northern Virginia area under CAA section 182(b)(2)(C), but that portion
of the SIP submittal is not being addressed in this action, and will
instead be addressed in a future action taken by EPA.
    Table 3 of section 2.2 of the SIP submittal identifies source
categories subject to CTGs and ACTs for which Virginia is submitting a
negative declaration stating that there are no sources located in the
Northern Virginia area subject to these CTGs or ACTs, for purposes of
the 2008 ozone NAAQS. As noted in the NPRM, EPA issued a CTG for the
Oil and Gas Industry in October of 2016. Because this is a newer CTG,
section 2.2 of the submittal includes a first-time negative declaration
for the 2016 Oil and Gas CTG. Along with the other negative
declarations, VADEQ asserts that there are no facilities in the
Northern Virginia area that are currently involved in oil and gas
production and processing activities covered by the 2016 Oil and Gas
CTG. The rationale for EPA's proposed action is explained in the NPRM
and will not be restated here.

III. EPA's Response to Comments Received

    EPA received three comments on the July 16, 2020 NPRM. All comments
received are in the docket for this action. One comment was generally
supportive of the CAA's impact on human health and the environment but
did not specifically address any aspect of EPA's proposed action and
will therefore not be addressed here. A summary of the other two
comments and EPA's responses are provided herein.
    Comment 1: The Commenter asserts that EPA should not approve
Virginia's negative declarations ``. . . without review of all possible
uses the state might use these approved declarations,'' because it may
allow the state to ``. . . skirt more necessary environmental
protections.'' The Commenter also appears to claim that EPA's approval
of Virginia's negative declarations hinders development of projects in
the state. To support this claim, the Commenter cites an unidentified
analysis which purports to show that a solar industry investment
project in Virginia was potentially blocked by such a declaration.
Citing climate change as an example, the Commenter further asserts that
``(w)ith EPA taking an official stance against projects to protect the
environment, we all stand to lose.''
    Response 1: The Commenter has misinterpreted the purpose of the
negative declarations, as well as the scope and impact of EPA's
approval. As stated in the NPRM, the negative declarations in
Virginia's April 2, 2020 submittal are related to the provisions of CAA
section 184(b) which require that states in the OTR, or with areas
included within the OTR, must revise their SIPs to implement RACT with
respect to all sources of VOC covered by a CTG document. Because
portions of Virginia are within the OTR, Virginia must provide a SIP
submission to address RACT for all sources of VOC covered by a CTG. See
NPRM 85 FR 43188, July 16, 2020.
    EPA has historically allowed states to submit a negative
declaration for a particular CTG category if the state finds that no
sources exist in the state, or area, which would be subject to that
CTG. EPA has addressed the idea of negative declarations numerous times
and for various NAAQS including in the General Preamble to the 1990
Amendments,\3\ the 2006 RACT Q&A Memo,\4\ and the 2008 Ozone
Implementation Rule.\5\ In each of these documents, EPA asserted that
if no sources exist in the nonattainment area for a particular CTG
category, the state would be allowed to submit a negative declaration
SIP revision. This principle also applies to states and areas in the
OTR.
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    \3\ ``State Implementation Plans; General Preamble for the
Implementation of Title I of the Clean Air Act Amendments of 1990,''
57 FR 13498 at 13512 (April 16, 1992).
    \4\ ``RACT Qs & As--Reasonably Available Control Technology
(RACT): Questions and Answers'' Memorandum from William T. Harnett,
May 18, 2006.
    \5\ ``Implementation of the 2008 National Ambient Air Quality
Standards for Ozone: State Implementation Plan Requirements,'' (80
FR 12263 at 12278 (March 6, 2015)).
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    Nothing in the CAA or EPA's implementing rules or guidance suggests
that states must have a SIP approved regulation for a category of CTG
sources that does not exist in the state. Should a new source of the
type covered by the existing CTG be constructed in a state after
approval of a negative declaration, EPA expects the state to develop a
regulation and submit it to EPA for approval into the SIP in accordance
with the relevant timing provided for by the CAA. At this time, because
the portion of Northern Virginia included in the OTR does not have any
sources subject to any of the CTGs listed in the NPRM, no regulations
are required to be developed and submitted to EPA for SIP approval for
those CTGs.
    Also, contrary to commenter's claim, the negative declarations will
not have any impact on any proposed development projects. The negative
declarations neither exempt sources subject to a CTG from complying
with other provisions of the CAA and Virginia law which otherwise apply
nor create any new requirements. In addition, EPA cannot identify any
impact the negative declarations would have on any proposed solar
project as claimed by the Commenter, and EPA is unable to evaluate the
analysis that the Commenter references because no citation is included
in the comment. The Commenter also references a letter from April 6,
2013 that they sent to EPA. However, because the commenter did not
identify the matter to which it applied or the person to whom the
letter was sent, EPA could not locate such a letter and was therefore
unable to evaluate it.
    Comment 2: A second Commenter also claims that EPA should not
approve Virginia's negative declarations. First, the Commenter asserts
that Virginia has no legal authority to make such declarations.
Further, the Commenter asserts that negative declarations ``. . .

preclude any future development in that sector . . . unless a new state
regulation is developed and enforced upon the new sources.''
Additionally, the Commenter asserts that the negative declarations will
have a devastating effect on development, and that they are contrary to
an unidentified Executive Order ``. . . precluding the government from
imposing new regulations or rules on the oil and gas industry.''
Finally, the Commenter asserts that ``EPA must revoke this proposed
rule and redo its analysis to show no state laws are being broken that
restrict economic development and EPA must show that the rule is in
line with the executive order promoting energy infrastructure and
economic growth.''
    Response 2: First, EPA notes that the Commenter is incorrect in the
assertion that the Commonwealth of Virginia lacks the legal authority
to make and submit the negative declarations proposed for approval in
the NPRM. The CAA establishes a partnership between state and Federal
entities for the protection and improvement of the nation's air
quality. Under CAA section 109, EPA is required to establish NAAQS for
certain criteria air pollutants in order to protect public health and
welfare. Subsequent to the promulgation or revision of a NAAQS, states
are required by CAA section 110 to adopt and submit to EPA for approval
a SIP which provides for the implementation, maintenance, and
enforcement of the NAAQS within that state. This requires that the
state have adequate state law authority to adopt, implement, and
enforce the SIP. Virginia state law provides such authorities to the
Virginia Air Pollution Control Board, which was created by the
legislature of Virginia (See Va. Code Sec. 10.1-1300 through 1332.4).
The Air Pollution Control Board has the broad authority to, among other
things, act reasonably to achieve and maintain levels of air quality
that will protect human health, welfare, and safety (Va. Code Sec.
10.1-1306); ``advise, consult, and cooperate with agencies of the
United States . . . in furtherance of the purposes of this chapter''
(Va. Code Sec. 10.1-1307.A); ``. . . promulgate regulations, including
emergency regulations, abating, controlling and prohibiting air
pollution throughout or in any part of the Commonwealth in accordance
with the provisions of the Administrative Process Act (section 2.2-4000
et seq.) . . .'' (Va. Code Sec. 10.1-1308); enforce the regulations it
adopts (``[a]fter the Board has adopted the regulations provided for in
Va. Code section 10.1-1308, it shall have the power to: (i) Initiate
and receive complaints as to air pollution; (ii) hold or cause to be
held hearings and enter orders diminishing or abating the causes of air
pollution and orders to enforce its regulations pursuant to Va. Code
section 10.1-1309; and (iii) institute legal proceedings, including
suits for injunctions for the enforcement of its orders, regulations,
and the abatement and control of air pollution and for the enforcement
of penalties'' (Va. Code Sec. 10.1-1307.D)); and issue, revoke, amend,
or deny permits for the issuance of air pollutants (See Va. Code Sec.
10.1-1322). These authorities provide the legal basis and authority for
the Virginia Air Pollution Control Board to submit a negative
declaration to EPA attesting that certain sources covered by CTGs do
not exist in the Northern Virginia area.
    Further, EPA cannot identify, and the Commenter did not identify,
any conflict with any state law which the approval of these negative
declarations might create. As discussed previously, the negative
declarations being approved by this action do not create any new
Virginia law, so no conflict with existing state law is being created.
    The Commenter is also incorrect about the impact and purpose of
Virginia's negative declarations. As discussed in response to Comment
1, the negative declarations which EPA proposed to approve in the July
16, 2020 NPRM do not preclude any future proposal to locate a new
source in the Northern Virginia area that is subject to a CTG. The sole
purpose of these negative declarations is to certify that at the time
of the declaration, no sources covered by a particular CTG exist within
the Northern Virginia area. EPA's approval of the negative declarations
indicates that the Agency agrees with the State's factual determination
that no sources exist in the Northern Virginia area that are covered by
the CTGs and ACTs listed. This factual determination does not itself
preclude any future development or limit economic development because
it does not impose any restrictions on sources or the State.
    Regarding the Commenter's assertion that the negative declarations
are contrary to an unidentified Executive Order ``. . . precluding the
government from imposing new regulations or rules on the oil and gas
industry,'' EPA notes that the comment does not identify the Executive
Order containing this prohibition. The Commenter may be referring to
Executive Order 13783 (Promoting Energy Independence and Economic
Growth) from March 28, 2017. Nevertheless, via this action, neither EPA
nor Virginia is adopting or imposing any regulations or rules on the
oil and gas industry. As explained previously, Virginia is merely
stating that at this time there are no sources in the Northern Virginia
area which are subject to the 2016 Oil and Gas CTG.
    For the reasons stated, EPA disagrees with the commenters and is
therefore finalizing our proposed approval of the negative declarations
in Virginia's April 2, 2020 submittal.

IV. Final Action

    EPA is approving that portion of Virginia's April 2, 2020 SIP
submission making a negative declaration for the 2016 Oil and Gas CTG,
as well as re-certifying a number of negative declarations for certain
specified CTGs and ACTs, in accordance with the SIP requirements for
the 2008 ozone NAAQS, as a revision to the Virginia SIP.

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 Va. Code 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.

VI. 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);
     Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because this is not a ``significant regulatory
action'' under Executive Order 12866.
     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 April 12, 2021. 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 certifies negative declarations for certain specified
CTGs, including the 2016 Oil and Natural Gas CTG, as well as a number
of other negative declarations for ACTs for the 2008 ozone NAAQS for
the Northern Virginia area and 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, Nitrogen dioxide, Ozone, Volatile organic compounds.

    This document of the Environmental Protection Agency was signed on
November 17, 2020, by Cosmo Servidio, Regional Administrator, pursuant
to the terms of the Consent Decree in Center for Biological Diversity,
et al., v. Wheeler, Case No. 3:20-cv-00448-VC (N.D. CA). That document
with the original signature and date is maintained by EPA. For
administrative purposes only, and in compliance with requirements of
the Office of the Federal Register, the undersigned EPA Official

re-signs the document for publication, as an official document of the
Environmental Protection Agency. This administrative process in no way
alters the legal effect of this document upon publication in the
Federal Register.

    Signed in Philadelphia, PA, on November 17, 2020 by:
Cosmo Servidio,
Regional Administrator, Region III.
    Dated: February 3, 2021,
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 for ``CTG Negative Declarations Certification for the 2008
Ozone National Ambient Air Quality Standard'' 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                geographic area    submittal date   EPA approval date       explanation
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                                                  * * * * * * *
CTG Negative Declarations          Northern Virginia          04/02/20  2/10/21, [insert     Certifies negative
 Certification for the 2008 Ozone   VOC emissions                        Federal Register     declarations for
 National Ambient Air Quality       control area.                        citation].           CTG and ACT source
 Standard.                                                                                categories in
                                                                                Northern Virginia,
                                                                                including the 2016
                                                                                Oil and Gas CTG.
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[FR Doc. 2021-02594 Filed 2-9-21; 8:45 am]
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