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Federal Register / Vol. 86, No. 26 / Wednesday, February 10, 2021 / Rules and Regulations
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 nations 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. 10.11300 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. 10.11306; advise, consult, and cooperate with agencies of the United States . . . in furtherance of the purposes of this chapter Va. Code Sec.
10.11307.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 after the Board has adopted the regulations provided for in Va. Code section 10.11308, it shall have the
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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 10.11309; 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. 10.11307.D; and issue, revoke, amend, or deny permits for the issuance of air pollutants See Va. Code Sec.
10.11322. 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 Virginias 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. EPAs approval of the negative declarations indicates that the Agency agrees with the States 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 Commenters 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
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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 Virginias April 2, 2020 submittal.
IV. Final Action EPA is approving that portion of Virginias April 2, 2020 SIP submission making a negative declaration for the 2016 Oil and Gas CTG, as well as recertifying 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. Virginias 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. Virginias 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
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