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Proposed Rule

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

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Environmental Protection Agency (EPA).


Proposed rule.


The Environmental Protection Agency (EPA) is proposing to approve 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. This action is being taken under the Clean Air Act (CAA).


Written comments must be received on or before August 17, 2020.


Submit your comments, identified by Docket ID No. EPA-R03-OAR-2020-0283 at, or via email to For comments submitted at, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from 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 Start Printed Page 43188methods, 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​dockets/​commenting-epa-dockets.

Start Further Info


Erin Trouba, 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) 814-2023. Ms. Trouba can also be reached via electronic mail at

End Further Info End Preamble Start Supplemental Information


On April 2, 2020, the Virginia Department of Environmental Quality (VADEQ) submitted a SIP revision certifying that it has met all of the Reasonably Available Control Technology (RACT) requirements set forth in CAA section 182(b)(2) for the 2008 ozone NAAQS in the Northern Virginia VOC Emissions Control Area. This action proposes approval of only the negative declarations contained in section 2.2 of the April 2, 2020 SIP submission. The remaining portion of the SIP submission, which addresses the RACT requirements in CAA section 182(b)(2)(C) applicable to the Northern Virginia VOC Emissions Control Area for the 2008 ozone NAAQS, will be addressed in a future action. Also, VADEQ previously submitted a 2008 ozone NAAQS RACT certification SIP revision on December 12, 2017. EPA is not, at this time, proposing to take action on the earlier 2017 submission.

I. Background

The CAA regulates emissions of nitrogen oxides (NOX) and VOCs to prevent photochemical reactions that result in ozone formation. RACT is a strategy for reducing NOx and VOC emissions from stationary sources within areas not meeting the ozone NAAQS. 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. See 81 FR 74798 (October 27, 2016). Portions of Northern Virginia are in the CMSA and therefore 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.” [1] 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 NOx in ozone nonattainment areas.

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. ACTs describe an available range of control technologies and their respective cost effectiveness, but do not identify any particular option as the presumptive norm for what is RACT.[2] ACTs are not legally binding.

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.

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 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.

II. Summary of SIP Revision and EPA Analysis

On April 2, 2020, VADEQ submitted a SIP revision to EPA certifying that the Northern Virginia area has met all of the CAA section 182(b)(2) RACT implementation requirements for the 2008 ozone NAAQS. However, this proposal 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 this proposed rulemaking.

A. Recertification of Prior Negative Declarations for VOC Sources Subject to Certain CTGs and ACTs Located in the Northern Virginia Area

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 that there are no sources located in the Northern Virginia area subject to the terms of these CTGs or ACTs, for purposes of the 2008 ozone NAAQS. VADEQ used several methods to determine whether there were any Start Printed Page 43189sources subject to CTGs or ACTs in the Northern Virginia area. First, VADEQ reviewed 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. For example, miscellaneous metal parts facilities must register if they emit 2.7 tpy or 15 pounds per day of VOC.

Virginia also used the Virginia Employment Database to identify small, mid-sized, and large sources in the affected area that may not be registered in CEDS. Using these databases, Virginia developed the list of CTGs and ACTs set forth in Table 3 of its submittal that it believes do not have sources located in the Northern Virginia area. Table 1 of this proposed rulemaking lists those CTGs and ACTs for which Virginia is submitting a negative declaration that no sources subject to the applicability requirements of these CTGs and ACTs are found in the Northern Virginia area. Table 1 also lists the CTGs and ACTs for which VADEQ is recertifying prior negative declarations or submitting new negative declarations.

Table 1—Negative Declarations for the Northern Virginia Area

Document title.
Control of Volatile Organic Compound Leaks from Petroleum Refinery Equipment, June 1978. EPA-450/2-78-036.
Control of Volatile Organic Compound Emissions from Large Petroleum Dry Cleaners, September 1982. EPA-450/3-82-009.
Control of Volatile Organic Compound Emissions from Manufacture of High Density Polyethylene, Polypropylene, and Polystyrene Resins, November 1983. EPA-450/3-83-008.
Control of Volatile Organic Compound Equipment Leaks from Natural Gas/Gasoline Processing Plants, December 1983. EPA-450/2-83-007.
Control of Volatile Organic Compound Fugitive Emissions from Synthetic Organic Chemical Polymer and Resin Manufacturing Equipment, March 1984. EPA-450/3-83-006.
Control of Volatile Organic Compound Emissions from Air Oxidation Processes in Synthetic Organic Chemical Manufacturing Industry, December 1984. EPA-450/3-84-015.
Synthetic Organic Chemical Manufacturing Industry (SOCMI) Distillation and Reactor Processes CTG, August 1993. EPA 450/4-91-031.
Wood Furniture Manufacturing Operations (CTG-MACT)—draft MACT out 5-94; final CTG, April 1996. CTG: EPA-453/R-96-007.
Surface Coating Operations at Shipbuilding and Ship Repair Facilities ACT (April 1994) and CTG, August 27, 1996. EPA 453/R-94-032 (ACT).
Aerospace (CTG & MACT), December 1997. EPA 453/R-97-004 CTG.
Control Techniques for Organic Emissions from Plywood Veneer Dryers, May 1983, ACT. EPA 450/3-83-012.
Ethylene Oxide Sterilization ACT, March 1989. EPA 450/3-89-007.
ACT Polystyrene Foam Manufacturing, 1990. EPA 450/3-90-020.
ACT Document—Organic Waste Process Vents, December 1990. EPA 450/3-91-007.
Bakery Ovens ACT, December 1992. EPA 453/R-92-017.
ACT Control Techniques for Volatile Organic Compound Emissions from Stationary Sources, December 1992. EPA 453/R-92-018.
ACT Industrial Wastewater, September 1992 & April 1994. EPA 453/D-93-056.
Control of VOC Emissions from the Application of Agricultural Pesticides, March 1993. EPA 450/R-92-011.
Control of Volatile Organic Compound Emissions from Batch Processes ACT, February 1994. EPA 453/R-93-017.
ACT Business Machine Plastic Parts coating/Automobile Plastic Parts Coating, February 1994. EPA 453/R-94-017.
ACT NOX Emissions from Nitric and Adipic Acid Manufacturing Plants, December 1991. EPA453/3-91-026.
NOX Emissions from Cement Manufacturing, March 1994 Updated September 2000. EPA 453/R-94-004.
NOX Emissions from Industrial, Commercial & Institutional Boilers, March 1994. EPA 453/R-94-022.
NOX Emissions from Glass Manufacturing, June 1994. EPA 453/R-94-037.
NOX Emissions from Iron and Steel, September 1994. EPA 453/R-94-065.
Control Techniques Guidelines for Flexible Package Printing, September 2006. EPA 453/R-6-003.
Control Techniques Guidelines for Flat Wood Paneling Coatings, September 2006. EPA 453/R-06-004.
Control Techniques Guidelines for Paper, Film, and Foil Coatings, September 2007. EPA 453/R-07-003.
Control Techniques Guidelines for Large Appliance Coatings, September 2009. EPA 453/R-07-004.
Control Techniques Guidelines for Metal Furniture Coatings, September 2007. EPA 453/R-07-005.
Control Techniques Guidelines for Fiberglass Boat Manufacturing Materials, September 2008. EPA 453/R-08-004.
Control Techniques Guidelines for Automobile and Light-Duty Truck Assembly Coatings, September 2008. EPA 453/R-08-006.
Protocol for Determining the Daily Volatile Organic Compound Emission Rate of Automobile and Light Duty Truck Primer-Surface and Topcoat Operations, September 2009. EPA 453/R-08-002.
Control Techniques Guidelines for the Oil and Natural Gas Industry, October 2016. EPA 453/B-16-001

B. New Negative Declaration for the 2016 Oil and Gas CTG

As noted in section I of the preamble for this proposed rulemaking, EPA adopted a revised CTG for the Oil and Gas Industry in October of 2016. Because this is a newer CTG, previous negative declarations submitted by Virginia for the 1997 ozone NAAQS did not address the 2016 Oil and Gas CTG. Therefore, section 2.2 of the submittal includes a first-time negative declaration for the 2016 Oil and Gas CTG.[3] A brief explanation of the scope of the 2016 Oil and Gas CTG is provided here in order to provide background information for Virginia's negative declaration.

The 2016 Oil and Gas CTG divides the industry into four segments: production, processing, transmission and storage, and distribution. 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 2016 Oil and Gas CTG covers certain specified sources of VOC emissions in the onshore production and processing segments of the Start Printed Page 43190industry, as well as storage vessel VOC emissions in all segments of the industry except distribution. 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, on pages 3-6 through 3-8.

In order to determine whether there were any sources in the Northern Virginia area subject to the 2016 Oil and Gas CTG, VADEQ consulted the Department of Mines, Minerals, and Energy (DMME)—Division of Gas and Oil (DGO), database, which showed that only plugged wells exist in the Northern Virginia area. VADEQ also consulted the CEDS and found that no natural gas processing or storage facilities are located in this area. VADEQ also consulted with the Virginia DMME, which could not identify any natural gas processing or storage facilities in the area. The details concerning VADEQ's analysis are on pages 17 through 18 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.

EPA notes that Virginia's April 2, 2020 SIP submission does address RACT for major sources of NOX and VOC in the Northern Virginia area under 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. See CTG p. 3-7.[4] 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.

III. Proposed Action

EPA's review of this material indicates that section 2.2 of the April 2, 2020 submittal meets CAA requirements and that VADEQ's analysis adequately demonstrates that there are no affected sources located in the Northern Virginia area for the CTG source categories for which VADEQ has submitted a new negative declaration or recertification of an existing negative declaration. EPA is proposing to approve section 2.2 of the Virginia SIP revision submitted on April 2, 2020, which recertifies the negative declarations for the CTGs and ACTs listed in Table 1 of this preamble for the purpose of partially satisfying CAA section 182(2)(A) and (B) for the 2008 ozone NAAQS. EPA is also proposing to approve the negative declaration in section 2.2 for the 2016 Oil and Gas CTG. At this time, EPA is not proposing any action on the other sections of Virginia's April 2, 2020 submission. The other sections of Virginia's April 2, 2020 submittal address those CTGs and ACTs for which there are sources subject to the CTGs or ACTs in the Northern Virginia area, and also address RACT for major stationary sources of VOC or NOX located in the Northern Virginia area. EPA will propose later separate action on those remaining parts. EPA is soliciting public comments on the proposed approval of the negative declarations discussed in this document. These 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 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 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 Start Printed Page 43191enforcement 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);
  • Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted 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 certifying negative declarations for Northern Virginia for the 2008 ozone NAAQS and 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).

Start List of Subjects

List of Subjects in 40 CFR Part 52

  • Environmental protection
  • Air pollution control
  • Incorporation by reference
  • Nitrogen dioxide
  • Ozone
  • Volatile organic compounds
End List of Subjects Start Signature

Dated: June 30, 2020.

Cosmo Servidio,

Regional Administrator, Region III.

End Signature End Supplemental Information


1.  The following areas in the Commonwealth of Virginia were designated as moderate nonattainment for the 2008 ozone NAAQS: The counties of Arlington, Fairfax, Loudoun, and Prince William and the Cities of Alexandria, Fairfax, Falls Church, Manassas, and Manassas Park. See 40 CFR 81.347. On April 4, 2019 (84 FR 15108) the Maryland and Virginia portion of the Washington, DC-MD-VA nonattainment area were redesignated to attainment of that standard. These areas, in addition to Stafford County, are in the OTR and therefore must still meet the requirements certifying implementation of 2008 ozone RACT, despite the redesignation to attainment.

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2.  A complete list of EPA-issued CTGs and ACTs with links to each CTG or ACT can be found at​ground-level-ozone-pollution/​control-techniques-guidelines-and-alternative-control-techniques.

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3.  Section 8 of the 2016 Oil and Gas CTG states that it replaces the December 1983 Control of Volatile Organic Compound Equipment Leaks from Natural Gas/Gasoline Processing Plants CTG. VADEQ submitted a negative declaration for this source category, so it is listed in Table 1.

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4.  For a diagram of the segments of the industry, see the CTG at p. 3-4.

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[FR Doc. 2020-14576 Filed 7-15-20; 8:45 a.m.]