Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Rules and Regulations 11959 

September 2020, No. 777, effective 

October 1, 2020. 

(ii) [Reserved]. 

[FR Doc. 2022–04071 Filed 3–2–22; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2021–0606; FRL–9176–02– 

R3] 

Air Plan Approval; Virginia; Revision to 

the Classification and Implementation 

of the 2015 Ozone National Ambient 

Air Quality Standard for the Northern 

Virginia Nonattainment Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving a state 

implementation plan (SIP) revision 

submitted by the Commonwealth of 

Virginia. This revision consists of an 

amendment to an existing regulation 

which adds a new section listing the 

localities that comprise the Northern 

Virginia ozone nonattainment area, 

which is classified as marginal for the 

2015 8-hour ozone national ambient air 

quality standard (NAAQS). EPA is 

approving this revision to the Virginia 

SIP in accordance with the requirements 

of the Clean Air Act (CAA). 

DATES: This final rule is effective on 

April 4, 2022. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R03–OAR–2021–0606. 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: 

Serena Nichols, Planning & 

Implementation Branch (3AD30), Air & 

Radiation Division, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. The telephone number is (215) 

814–2053. Ms. Nichols can also be 

reached via electronic mail at 

Nichols.Serena@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On December 15, 2021 (86 FR 71214), 

EPA published a notice of proposed 

rulemaking (NPRM) for the 

Commonwealth of Virginia. In the 

NPRM, EPA proposed approval of 

Virginia’s amendment to an existing 

regulation by adding a new section 

listing the localities that comprise the 

Northern Virginia ozone nonattainment 

area. This revision is needed for the 

Commonwealth to implement the 2015 

8-hour ozone NAAQS in the Northern 

Virginia ozone nonattainment area. The 

formal SIP revision was submitted by 

the Commonwealth of Virginia through 

the Virginia Department of 

Environmental Quality (VADEQ) on 

August 28, 2020. 

II. Summary of SIP Revision and EPA 

Analysis 

Virginia’s August 28, 2020 SIP 

revision consists of an amendment to an 

existing regulation which adds a new 

section listing the localities that 

comprise the Northern Virginia ozone 

nonattainment area, which is classified 

as marginal for the 2015 ozone NAAQS. 

The amendments revise the Virginia 

Administrative Code (VAC), specifically 

9VAC5–20–204 (Nonattainment areas) 

subsection A, which geographically 

defines the nonattainment areas by 

locality for the criteria pollutants 

indicated. The amendments are 

necessary for implementation of the 

2015 ozone NAAQS. The added 

subdivision, 9VAC5–20–204 A 4, 

defines the Northern Virginia marginal 

ozone nonattainment area for the 2015 

8-hour ozone standard as including the 

following areas: Arlington County, 

Fairfax County, Loudoun County, Prince 

William County, Alexandria City, 

Fairfax City, Falls Church City, 

Manassas City, and Manassas Park City. 

A reference is also added to 40 CFR 

51.1303(a), which pertains to the 

application of classification and 

attainment date provisions for areas 

designated nonattainment for the 2015 

8-hour ozone NAAQS. 

Other specific requirements of 

VADEQ’s August 28, 2020 submittal 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, as a SIP revision, 

the Commonwealth of Virginia’s August 

28, 2020 submittal revising the 

subsection listing the localities that 

comprise the Northern Virginia ozone 

nonattainment area for the 2015 8-hour 

ozone NAAQS. 

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 § 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 


khammond on DSKJM1Z7X2PROD with RULES
11960 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Rules and Regulations 

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 

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 May 2, 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, amending the section 

listing the localities that comprise the 

Northern Virginia ozone nonattainment 

area, 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, Intergovernmental relations, 

Ozone, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Dated: February 16, 2022. 

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 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart VV—Virginia 

■ 2. In § 52.2420, the table in paragraph 

(e)(1) is amended by adding an entry for 

‘‘Revision to the Classification and 

Implementation of the 2015 Ozone 

National Ambient Air Quality Standard 

for the Northern Virginia Nonattainment 

Area’’ at the end of the table to read as 

follows: 

§ 52.2420 Identification of plan. 

* * * * * 

(e) * * * 

(1) * * * 


khammond on DSKJM1Z7X2PROD with RULES
Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Rules and Regulations 11961 

1EPA promulgated 40 CFR part 55 on September 

4, 1992. The reader may refer to the proposed 

rulemaking to promulgate part 55 from December 5, 

1991 (56 FR 63774) and the preamble to the final 

rule promulgated September 4, 1992 (57 FR 40792) 

for further background and information on the OCS 

regulations. 

2Each COA, which has been delegated the 

authority to implement and enforce part 55, will 

use its administrative and procedural rules as 

onshore. However, in those instances where EPA 

has not delegated authority to implement and 

enforce part 55, as in New Jersey, EPA will use its 

own administrative and procedural requirements to 

Continued 

Name of non-regulatory SIP revision 

Applicable 

geographic 

area 

State 

submittal 

date 

EPA approval date Additional explanation 

*******

Revision to the Classification and Implementation of the 2015 Ozone National 

Ambient Air Quality Standard for the 

Northern Virginia Nonattainment Area.

Northern Virginia 

Ozone Nonattainment Area.

8/28/20 3/3/22, [insert Federal Register citation].This revision consists of an amendment 

to an existing regulation which adds a 

new section listing the localities that 

comprise the Northern Virginia ozone 

nonattainment area. 

* * * * * 

[FR Doc. 2022–04362 Filed 3–2–22; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 55 

[EPA–R02–OAR–2021–0747; FRL–9241–02– 

R2] 

Outer Continental Shelf Air 

Regulations Update To Include New 

Jersey State Requirements 

AGENCY: Environmental Protection 

Agency. 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is finalizing an update of 

a portion of the Outer Continental Shelf 

(OCS) Air Regulations proposed in the 

Federal Register on November 23, 2021. 

Requirements applying to OCS sources 

located within 25 miles of states’ 

seaward boundaries must be updated 

periodically to remain consistent with 

the requirements of the corresponding 

onshore area (COA), as mandated by 

section 328(a)(1) of the Clean Air Act 

(CAA). The portion of the OCS air 

regulations that is being updated 

pertains to the requirements for OCS 

sources for which the State of New 

Jersey is the COA. The intended effect 

of approving the OCS requirements for 

the State of New Jersey is to regulate 

emissions from OCS sources in 

accordance with the requirements 

onshore. The requirements discussed 

below will be incorporated by reference 

into the Code of Federal Regulations 

and are listed in the appendix to the 

OCS air regulations. 

DATES: This final rule is effective on 

April 4, 2022. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

Number EPA–R02–OAR–2021–0747. All 

documents in the docket are listed on 

the http://www.regulations.gov website. 

FOR FURTHER INFORMATION CONTACT: 

Viorica Petriman, Air Programs Branch, 

Permitting Section, U.S. Environmental 

Protection Agency, Region 2, 290 

Broadway, New York, New York 10007, 

(212) 637–4021, petriman.viorica@

epa.gov. 

SUPPLEMENTARY INFORMATION: The 

SUPPLEMENTARY INFORMATION section is 

arranged as follows: 

Table of Contents 

I. What is the background for this action? 

II. What comments were received in response 

to the EPA’s proposed action? 

III. What action is the EPA taking? 

IV. Incorporation by Reference 

V. Statutory and Executive Order Reviews 

I. What is the background for this 

action? 

On November 23, 2021, EPA proposed 

to incorporate requirements into the 

OCS Air Regulations at 40 CFR part 55 1

pertaining to the State of New Jersey. 

See 86 FR 66505. Section 328(a) of the 

CAA requires that for such OCS sources 

located within 25 miles of a State’s 

seaward boundary, the requirements 

shall be the same as would be 

applicable if the sources were located in 

the corresponding onshore area (COA). 

Because the OCS requirements are based 

on onshore requirements, and onshore 

requirements may change, CAA section 

328(a)(1) requires that the EPA update 

the OCS requirements as necessary to 

maintain consistency with onshore 

requirements. 

To comply with this statutory 

mandate, the EPA must incorporate by 

reference into part 55 all relevant state 

rules in effect for onshore sources, so 

they can be applied to OCS sources 

located offshore. This limits EPA’s 

flexibility in deciding which 

requirements will be incorporated into 

40 CFR part 55 and prevents EPA from 

making substantive changes to the 

requirements it incorporates. As a 

result, EPA may be incorporating rules 

into 40 CFR part 55 that do not conform 

to all of EPA’s state implementation 

plan (SIP) guidance or certain 

requirements of the CAA. Inclusion in 

the OCS rules does not imply that a rule 

meets the requirements of the CAA for 

SIP approval, nor does it imply that the 

rule will be approved by EPA for 

inclusion in the SIP. 

40 CFR 55.12 specifies certain times 

at which part 55’s incorporation by 

reference of a state’s rules must be 

updated. One time such a ‘‘consistency 

update’’ must occur is when any OCS 

source applicant submits a Notice of 

Intent (NOI) under 40 CFR 55.4 for a 

new or a modified OCS source. 40 CFR 

55.4(a) requires that any OCS source 

applicant must submit to EPA a NOI 

before performing any physical change 

or change in method of operation that 

results in an increase in emissions. EPA 

must conduct any necessary consistency 

update when it receives a NOI, and 

prior to receiving any application for a 

preconstruction permit from the OCS 

source applicant. 40 CFR 55.6(b)(2) and 

55.12(f). 

On September 14, 2021, the EPA 

received a NOI from Ocean Wind, LLC 

to submit an OCS air permit application 

for the construction and operation of a 

new OCS source (a wind energy project) 

about 15 miles offshore New Jersey. 

The EPA reviewed the New Jersey 

Department of Environmental Protection 

(‘‘NJDEP’’) air rules currently in effect, 

to ensure that they are rationally related 

to the attainment or maintenance of 

Federal and State Ambient Air Quality 

Standards (AAQS) or part C of title I of 

the CAA, that they are not designed 

expressly to prevent exploration and 

development of the OCS, and that they 

are applicable to OCS sources. See 40 

CFR 55.1. The EPA has also evaluated 

the rules to ensure they are not arbitrary 

and capricious. See 40 CFR 55.12(e). 

The EPA has excluded New Jersey’s 

administrative or procedural rules,2 and 


khammond on DSKJM1Z7X2PROD with RULES