[Federal Register Volume 87, Number 122 (Monday, June 27, 2022)]
[Proposed Rules]
[Pages 38046-38048]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-13660]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2021-0855; FRL-8941-01-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: 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 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. This action is being taken under the Clean Air Act (CAA).

DATES: Written comments must be received on or before July 27, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2021-0855 at https://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 https://www.epa.gov/dockets/commenting-epa-dockets.

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: On August 9, 2021, the Virginia Department 
of Environmental Quality (VADEQ) submitted the negative declaration for 
the 2016 Oil and Gas CTG for the 2015 ozone NAAQS as a revision to the 
Virginia SIP.

I. Background

    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 NAAQS for ozone. 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.
    Section 172(c)(1) of the CAA provides that SIPs for nonattainment 
areas must include RACT, including RACT for existing sources of 
emissions. Section 182(b)(2)(A) of the CAA requires that for areas 
designated nonattainment for an ozone NAAQS and classified as moderate, 
states must revise their SIP 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 
182(b)(2)(B) requires the same for CTGs issued before November 15, 
1990. CAA section 182(c) through (e) applies this requirement to states 
with areas designated nonattainment for an ozone NAAQS classified as 
serious, severe, and extreme.
    The CAA also imposes the same requirement on states in Ozone 
Transport Regions (OTR). Specifically, CAA section 184(b) provides that 
states in an OTR must revise their SIP to implement RACT with respect 
to all sources of VOC in the OTR covered by a CTG document issued 
before or after November 15, 1990, even for areas designated attainment 
within the OTR. CAA section 184(a) establishes a single OTR comprised 
of 11 eastern states and the Consolidated Metropolitan Statistical Area 
(CMSA) that includes the District of Columbia. Portions of Northern 
Virginia are in the CMSA and therefore the OTR. The rest of Virginia is 
not in the OTR. The Virginia portion of the OTR includes the following 
areas: Arlington County, Fairfax County, Loudoun County, Prince William 
County, Stafford County, Alexandria City, Fairfax City, Falls Church 
City, Manassas City, and Manassas Park City. Collectively, these areas 
will be referred to as the ``Northern Virginia VOC Emissions Control 
Area'' or the ``Northern Virginia area.'' Finally, Section 182(f) 
requires that plan provisions required under subpart 4 of part D of 
title I of the CAA, which includes sections 182 through 184, for major 
sources of VOC shall also apply to major stationary sources of oxides 
of nitrogen in ozone nonattainment areas.
    CTGs and alternative control techniques (ACTs) form important 
components of the guidance that EPA provides to states for making RACT 
determinations.\1\ CTGs are used to presumptively define VOC RACT for 
applicable source categories. States subject to RACT requirements are 
required to adopt controls that are at least as stringent as those 
found in the CTG either by adopting regulations or issuing single-
source orders or permits that outline what the source is required to do 
to meet RACT. On October 27, 2016 (81 FR 74798), EPA published in the 
Federal Register the ``Release of Final Control Techniques Guidelines 
for the Oil and Natural Gas Industry.'' This 2016 Oil and Gas CTG 
provided information to state, local, and tribal air agencies to assist 
in determining RACT

[[Page 38047]]

for VOC emissions from select oil and natural gas industry emission 
sources. The 2016 Oil and Gas CTG replaces an earlier 1983 CTG entitled 
``Control of Volatile Organic Compound Equipment Leaks from Natural 
Gas/Gasoline Processing Plants. December 1983.'' EPA-450/3-83-007 (1983 
CTG) 49 FR 4432 (February 6, 1984). 2016 Oil and Gas CTG, p. 8-1.
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    \1\ A complete list of EPA-issued CTGs and ACTs with links to 
each CTG or ACT can be found at https://www.epa.gov/ground-level-ozone-pollution/control-techniques-guidelines-and-alternative-control-techniques.
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    On March 6, 2015 (80 FR 12263), 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).\2\ 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 must submit a negative declaration for that CTG. See 80 FR 
12263, 12278. On December 6, 2018 (83 FR 62998), EPA issued a final 
rule entitled ``Implementation of the 2015 National Ambient Air Quality 
Standards for Ozone: Nonattainment Area State Implementation Plan 
Requirements'' (2015 Ozone Implementation Rule).\3\ In the 2015 Ozone 
Implementation Rule, EPA retained without significant revision the 
majority of existing implementing regulations associated with the 2008 
ozone NAAQS for the purposes of implementing the 2015 ozone NAAQS. See 
83 FR 62998. If no source for a specified CTG exists in a state, the 
state must submit, as a SIP revision, a negative declaration 
documenting this fact. On August 9, 2021, VADEQ submitted for approval 
into the Virginia SIP a negative declaration for the 2016 CTG for the 
Oil and Natural Gas Industry for the 2015 ozone standards.
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    \2\ See Provisions for Implementation of the 2008 Ozone National 
Ambient Air Quality Standards at 40 CFR 51.1100 through 51.1119.
    \3\ See Provisions for Implementation of the 2015 Ozone National 
Ambient Air Quality Standards at 40 CFR 51.1300 through 51.1319.
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II. Summary of SIP Revision and EPA Analysis

    The 2016 Oil and Gas CTG divides the industry into four segments: 
production, processing, transmission and storage, and distribution. The 
transmission and storage sector includes compressor stations, pipelines 
and storage facilities. The distribution sector is the final step in 
delivering natural gas to customers and includes gas mains and service 
pipelines. See CTG p.3-1; see also CTG pp.3-1 through 3-3 for a brief 
explanation of each segment. However, not all four segments of the 
industry are subject to the requirements of the CTG. The CTG covers 
select sources of VOC emissions in the onshore production and 
processing segments of the oil and natural gas industry (i.e., 
pneumatic controllers, pneumatic pumps, compressors, equipment leaks, 
fugitive emissions) and storage vessel VOC emissions in all segments 
(except distribution) of the oil and natural gas industry. These 
sources were selected for RACT recommendations because current 
information indicates that they are significant sources of VOC 
emissions. CTG p.3-5. A summary of the oil and natural gas emission 
sources and recommended RACT for those sources is provided in Table 1 
of the CTG document, on pages 3-6 through 3-8.
    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. 
VADEQ used several methods to determine whether there were any sources 
subject to this CTG in the Northern Virginia area. VADEQ consulted the 
Department of Mines, Minerals, and Energy (DMME) Division of Gas and 
Oil (DGO) database, which showed that there are no active wells in the 
Northern Virginia area. No drilling permits have been issued in the 
area since 1991. VADEQ also consulted the Comprehensive Environmental 
Data System (CEDS), which is the air regulatory registration database 
for the jurisdictions comprising the Northern Virginia VOC Emissions 
Control Area (i.e., the Northern Virginia area). As explained in the 
SIP submission, facilities must register in this database all units 
subject to any applicable regulation in the Regulations for the Control 
and Abatement of Air Pollution, any facilities with the potential to 
emit (PTE) at least 25 tons per year (tpy) of VOC or 40 tpy of 
NOX, and any facility making a change with a PTE of at least 
10 tpy VOC or NOX. The CEDS also has registration and 
reporting requirements for facilities emitting much lower levels of 
VOC. After consulting CEDS, VADEQ found that no natural gas processing 
or storage facilities are located in the Northern Virginia area. The 
details concerning VADEQ's analysis are on page 2 of Virginia's 
submittal.
    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. That is, these compressor stations 
are in neither the production nor processing segment of the industry. 
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. See CTG, p. 3-7. However, if 
these compressor stations meet the VOC or NOX emission 
thresholds to be considered major sources of VOC or NOX for 
a moderate ozone nonattainment area, these sources will be subject to a 
major source RACT determination under Section 182(b)(2)(C) of the CAA.

III. Proposed Action

    EPA's review of this material indicates that the August 9, 2021 
submittal meets CAA requirements and that VADEQ's analysis adequately 
demonstrates that there are no affected sources located in the Northern 
Virginia area subject to the 2016 Oil and Gas CTG source categories. 
Therefore, EPA is proposing to approve Virginia's August 9, 2021 
negative declaration SIP submittal as a revision to the Virginia SIP. 
EPA is soliciting public comments on Virginia's negative declaration, 
including the adequacy of VADEQ's search and analysis of the CTG 
applicability criteria. Comments concerning the adequacy of the 2016 
Oil and Gas CTG itself are not germane to this action and will not be 
considered. Relevant comments will be considered before taking final 
action.

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

[[Page 38048]]

violations. Virginia's Voluntary Environmental Assessment Privilege 
Law, Va. Code Sec. 10.11198, 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. 10.11198, 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. 10.11199, 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

    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
     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. As such, EPA's 
proposed approval of Virginia's SIP revision certifying the negative 
declaration for the 2016 Oil and Gas CTG 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, Nitrogen dioxide, Ozone, Volatile organic compounds.

Adam Ortiz,
Regional Administrator, Region III.
[FR Doc. 2022-13660 Filed 6-24-22; 8:45 am]
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