Rule2021-27213
Findings of Failure To Submit State Implementation Plan Revisions for the 2016 Oil and Natural Gas Industry Control Techniques Guidelines for the 2015 Ozone National Ambient Air Quality Standards (NAAQS) and for States in the Ozone Transport Region
Primary source
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Published
December 16, 2021
Effective
January 18, 2022
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is taking final action to find that the states of New York and Pennsylvania failed to submit State Implementation Plan (SIP) revisions required by the Clean Air Act (CAA) in a timely manner to address reasonably available control technology (RACT) requirements associated with the 2016 Oil and Natural Gas Industry Control Techniques Guidelines (CTG) for reducing volatile organic compounds (VOC). The RACT requirements associated with the CTG apply in certain nonattainment areas for the 2015 ozone National Ambient Air Quality Standards (NAAQS) and in states in the Ozone Transport Region (OTR). Both New York and Pennsylvania are in the OTR. This action triggers certain CAA deadlines for the EPA to impose sanctions if a state does not submit a complete SIP addressing the outstanding requirements and for the EPA to promulgate a Federal Implementation Plan (FIP) if the EPA does not approve the state's SIP revision.
Full Text
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<title>Federal Register, Volume 86 Issue 239 (Thursday, December 16, 2021)</title>
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[Federal Register Volume 86, Number 239 (Thursday, December 16, 2021)]
[Rules and Regulations]
[Pages 71385-71388]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-27213]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR PART 52
[EPA-HQ-OAR-2021-0868; FRL-9251-01-OAR]
Findings of Failure To Submit State Implementation Plan Revisions
for the 2016 Oil and Natural Gas Industry Control Techniques Guidelines
for the 2015 Ozone National Ambient Air Quality Standards (NAAQS) and
for States in the Ozone Transport Region
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final action.
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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to find that the states of New York and Pennsylvania failed to
submit State Implementation Plan (SIP) revisions required by the Clean
Air Act (CAA) in a timely manner to address reasonably available
control technology (RACT) requirements associated with the 2016 Oil and
Natural Gas Industry Control Techniques Guidelines (CTG) for reducing
volatile organic compounds (VOC). The RACT requirements associated with
the CTG apply in certain nonattainment areas for the 2015 ozone
National Ambient Air Quality Standards (NAAQS) and in states in the
Ozone Transport Region (OTR). Both New York and Pennsylvania are in the
OTR. This action triggers certain CAA deadlines for the EPA to impose
sanctions if a state does not submit a complete SIP addressing the
outstanding requirements and for the EPA to promulgate a Federal
Implementation Plan (FIP) if the EPA does not approve the state's SIP
revision.
DATES: This action is effective on January 18, 2022.
FOR FURTHER INFORMATION CONTACT: General questions concerning this
notice should be addressed to Bob Lingard, Office of Air Quality
Planning and Standards, Air Quality Policy Division, Mail Code: C539-
01, 109 T.W. Alexander Drive, Research Triangle Park, NC 27709; by
telephone (919) 541-5272; or by email at <a href="/cdn-cgi/l/email-protection#7d1114131a1c0f19530f121f180f093d180d1c531a120b"><span class="__cf_email__" data-cfemail="600c090e070112044e120f02051214200510014e070f16">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. General Information
A. How is the preamble organized?
Table of Contents
I. General Information
A. How is the preamble organized?
B. Notice and Comment Under the Administrative Procedure Act
(APA)
C. How can I get copies of this document and other related
information?
D. Where do I go if I have specific state questions?
II. Background
III. Consequences of Findings of Failure To Submit
IV. Findings of Failure To Submit for States That Failed To Make a
Nonattainment Area SIP Submittal and/or Ozone Transport Region SIP
Submittal
V. Environmental Justice Considerations
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Executive
Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act of 1995 (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution or Use
I. National Technology Transfer and Advancement Act (NTTAA)
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority and Low Income Populations
K. Congressional Review Act (CRA)
L. Judicial Review
B. Notice and Comment Under the Administrative Procedure Act (APA)
Section 553 of the APA, 5 U.S.C. 553(b)(3)(B), provides that, when
an agency for good cause finds that notice and public procedures are
impracticable, unnecessary or contrary to the public interest, the
agency may issue a rule without providing notice and an opportunity for
public comment. The EPA has determined that there is good cause for
making this final agency action without prior proposal and opportunity
for comment because no significant EPA judgment is involved in making
findings of failure to submit SIPs, or elements of SIPs, required by
the CAA, where states have made no submissions to meet the requirement.
Thus, notice and public procedures are unnecessary to take this action.
The EPA finds that this constitutes good cause under 5 U.S.C.
553(b)(3)(B).
C. How can I get copies of this document and other related information?
The EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2021-0868. Publicly available docket materials are
available either electronically through <a href="http://www.regulations.gov">http://www.regulations.gov</a> or
in hard copy at the EPA Docket Center, EPA/DC, William Jefferson
Clinton Building, Room 3334, 1301 Constitution Avenue NW, Washington,
DC. Out of an abundance of caution for members of the public and our
staff, the EPA Docket Center and Reading Room are open to the public by
appointment only to reduce the risk of transmitting COVID-19. Docket
Center staff will continue to provide remote customer service via
email, phone, and webform. The telephone number for the Public Reading
Room is (202) 566-1744 and the telephone number for the Office of Air
and Radiation Docket and Information Center is (202) 566-1742. For
further information on EPA Docket Center services and the current
status, please visit us online at <a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.
D. Where do I go if I have specific state questions?
For questions related to specific states mentioned in this notice,
please contact the appropriate EPA Regional office:
[[Page 71386]]
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Regional offices States
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EPA Region 2: Mr. Kirk Wieber, Chief, New York.
Air Program Branch, EPA Region 2, 290
Broadway, New York, New York 10007.
<a href="/cdn-cgi/l/email-protection#1a6d737f787f6834717368715a7f6a7b347d756c"><span class="__cf_email__" data-cfemail="205749454245520e4b49524b604550410e474f56">[email protected]</span></a>.
EPA Region 3: Mike Gordon, Chief, Pennsylvania.
Planning and Implementation Branch, EPA
Region 3, 1650 Arch Street,
Philadelphia, Pennsylvania 19103.
<a href="/cdn-cgi/l/email-protection#67000815030809490a0e0c022702170649000811"><span class="__cf_email__" data-cfemail="d4b3bba6b0bbbafab9bdbfb194b1a4b5fab3bba2">[email protected]</span></a>.
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II. Background
On October 26, 2015, the EPA strengthened the NAAQS for ozone to
establish new 8-hour standards.\1\ In that action, the EPA promulgated
identical revised primary and secondary ozone standards, designed to
protect public health and welfare, of 0.070 parts per million (ppm).
Those standards are met when the 3-year average of the annual fourth
highest daily maximum 8-hour average ozone concentration (an area's
``design value'') is less than or equal to 0.070 ppm.\2\
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\1\ 80 FR 65292 (October 26, 2015).
\2\ 40 CFR 50.15.
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Promulgation of a revised NAAQS triggers a requirement for the EPA
to designate areas of the country as nonattainment, attainment, or
unclassifiable for the standards, as well as, for the ozone NAAQS, a
requirement for the EPA, at the same time, to classify any
nonattainment areas.\3\ Ozone nonattainment areas are classified upon
designation based on the severity of their ambient ozone levels, as
determined based on an area's design value for the most recent 3 years.
The possible classifications for ozone nonattainment areas are
Marginal, Moderate, Serious, Severe, and Extreme.\4\ Nonattainment
areas with a ``lower'' classification (e.g., Marginal) have ozone
levels that are closer to the standards than areas with a ``higher''
classification (e.g., Severe).\5\
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\3\ CAA sections 107(d)(1) and 181(a)(1).
\4\ CAA section 181(a)(1).
\5\ See 40 CFR 51.1303 for the design value thresholds for each
classification for the 2015 ozone NAAQS.
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On June 4, 2018, and July 25, 2018, respectively, the EPA issued
two separate rules that cumulatively designated areas throughout the
country as nonattainment for the 2015 ozone NAAQS, effective August 3,
2018, and September 24, 2018, and established classifications for the
designated nonattainment areas.\6\ Areas designated nonattainment for
the ozone NAAQS are subject to the general nonattainment area planning
requirements of CAA section 172 and also to the ozone-specific planning
requirements of CAA section 182. States in the OTR are subject to the
requirements outlined in CAA section 184.\7\ CAA section 172(c)(1)
provides that SIPs for nonattainment areas must include reasonably
available control technology (RACT), including RACT for existing
sources of emissions. CAA section 182(b)(2)(A) requires states in which
a nonattainment area classified as Moderate is located to amend their
SIP ``to include provisions to require the implementation of [RACT ] .
. . with respect to . . . [e]ach category of VOC sources in the area
covered by a CTG document . . .'' CAA sections 182(c) through (e) apply
this requirement to states with designated ozone nonattainment areas
classified as Serious, Severe, or Extreme. CAA section 184(b) provides
that states in the OTR must submit a SIP revision addressing RACT with
respect to all sources of VOCs in the OTR covered by a CTG document.
The states of New York and Pennsylvania are both included in the OTR
and thus are subject to the CTG RACT requirements of CAA section
184(b). In addition to being included in the OTR, the state of New York
contains portions of a multi-state nonattainment area classified as
Moderate for the 2015 ozone NAAQS and is thus independently subject to
the CTG RACT requirement due to CAA section 182(b)(2)(A). The relevant
nonattainment area is called the New York-Northern New Jersey-Long
Island, NY-NJ-CT ozone nonattainment area.
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\6\ 83 FR 25776 (June 4, 2018) and 83 FR 35316 (July 25, 2018).
\7\ CAA section 184(a) establishes a single OTR comprised of
Connecticut, Delaware, Maine, Maryland, Massachusetts, New
Hampshire, New Jersey, New York, Pennsylvania, Rhode Island,
Vermont, and the Consolidated Metropolitan Statistical Area that
includes the District of Columbia.
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On October 27, 2016, the EPA issued a final CTG document for
reducing VOC emissions from existing oil and natural gas industry
equipment and processes.\8\ On March 9, 2018, for reasons explained in
the Federal Register (83 FR 10478), the EPA proposed to withdraw the
CTG. However, the EPA did not finalize the proposal to withdraw the
CTG. The EPA announced in the U.S. Office of Management and Budget's
Spring 2020 Unified Agenda and Regulatory Plan that ``the CTG will
remain in place as published on October 27, 2016.'' \9\
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\8\ 81 FR 74798 (October 27, 2016).
\9\ See <a href="https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202004&RIN=2060-AT76">https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202004&RIN=2060-AT76</a> (last accessed October
14, 2020).
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The RACT SIP revisions addressing the 2016 oil and natural gas
industry CTG, among other things, were due for EPA review from states
with nonattainment areas classified as Moderate or higher for the 2015
ozone NAAQS, as well as the 12 states and the District of Columbia that
comprise the OTR, by August 3, 2020.\10\ For nonattainment areas and/or
states subject to this RACT SIP requirement without any oil and natural
gas sources covered by the CTG in their jurisdictions, states were
required to make a SIP submission that could be comprised of a
``negative declaration'' stating as much.
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\10\ 83 FR 62998 (December 6, 2018), see also 40 CFR 51.1312 and
51.1316.
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Pursuant to CAA section 110(k)(1)(B), the EPA must determine no
later than 6 months after the date by which a state is required to
submit a SIP whether a state has made a submission that meets the
minimum completeness criteria established pursuant to CAA section
110(k)(1)(A). These criteria are set forth at 40 CFR part 51, appendix
V. The EPA refers to the determination that a state has not submitted a
SIP submission that meets the minimum completeness criteria as a
``finding of failure to submit.''
The following Table 1 provides the names of states with
nonattainment areas and/or OTR states that this action finds failed to
submit the SIP revision required for the CTG for the 2015 ozone NAAQS
for reducing VOC emissions from existing oil and natural gas industry
equipment and processes as of the date of this action.
[[Page 71387]]
Table 1--States and/or Nonattainment Areas Included in Findings of Failure To Submit Required SIP Revisions To
Address the 2016 Oil and Natural Gas Industry CTG for the 2015 Ozone NAAQS
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State Nonattainment area/OTR state Classification EPA Region
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NY.................................... NY portion of New York-N New Serious................. 2
Jersey-Long Island
nonattainment area.
NY.................................... NY--OTR state................. OTR..................... 2
PA.................................... PA--OTR state................. OTR..................... 3
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III. Consequences of Findings of Failure To Submit
If the EPA finds that a state has failed to make the required SIP
submittal or that a submitted SIP is incomplete, then CAA section
179(a) establishes specific consequences, after a period of time,
including the imposition of mandatory sanctions for the affected area
or state (as appropriate in the case of the OTR). Additionally, such a
finding triggers an obligation under CAA section 110(c) for the EPA to
promulgate a FIP no later than 2 years after issuance of the finding of
failure to submit if the affected state has not submitted, and the EPA
has not approved, the required SIP submittal.
If the EPA has not affirmatively determined that a state has made
the required complete SIP submittal for an area or OTR state within 18
months of the effective date of this rulemaking, then, pursuant to CAA
section 179(a) and (b) and 40 CFR 52.31, the offset sanction identified
in CAA section 179(b)(2) will apply in the affected nonattainment area
or OTR state. If the EPA has not affirmatively determined that the
state has made the required complete SIP submittal within 6 months
after the offset sanction is imposed, then the highway funding sanction
will apply in the affected nonattainment area, in accordance with CAA
section 179(b)(1) and 40 CFR 52.31.\11\ The sanctions will not take
effect if, within 18 months after the effective date of these findings,
the EPA affirmatively determines that the state has made a complete SIP
submittal addressing the deficiency for which the finding was made.
Additionally, if the state makes the required SIP submittal and the EPA
takes final action to approve the submittal within 2 years of the
effective date of these findings, the EPA is not required to promulgate
a FIP for the affected nonattainment area or OTR state.
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\11\ For the OTR states, such highway sanctions would only apply
in nonattainment areas. If the OTR state does not contain any
nonattainment areas, then the highway sanctions would not apply in
that state.
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IV. Findings of Failure To Submit for States That Failed To Make a
Nonattainment Area and/or Ozone Transport Region SIP Submittal
Based on a review of SIP submittals received and deemed complete as
of the date of signature of this action, the EPA finds that the states
listed in Table 1 above failed to submit the 2016 Oil and Gas CTG RACT
SIP revisions required under subpart 2 of part D of Title I of the CAA
and that were due no later than August 3, 2020, for the listed
nonattainment areas and OTR states.
V. Environmental Justice Considerations
The EPA believes that the human health or environmental risks
addressed by this action will not have disproportionately high or
adverse human health or environmental effects on minority, low-income,
or indigenous populations because it does not directly affect the level
of protection provided to human health or the environment under the
2015 ozone NAAQS. The purpose of this action is to make findings that
the named states failed to provide the identified SIP submissions to
the EPA that are required per the CAA. As such, this action does not
directly affect the level of protection provided for human health or
the environment. Moreover, it is intended that the actions and
deadlines resulting from this notice will in fact lead to greater
protection for U.S. citizens, including minority, low-income, or
indigenous populations, by ensuring that states meet their statutory
obligation to develop and submit SIPs to ensure that areas make
progress toward reducing ozone pollution.
VI. Statutory and Executive Order Reviews
A. Executive Orders 12866: Regulatory Planning and Executive Order
13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was,
therefore, not submitted to the Office of Management and Budget (OMB)
for review.
B. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the provisions of the PRA. This final rule does not establish any new
information collection requirement apart from what is already required
by law. This rule relates to the requirement in the CAA for states to
submit SIPs under sections 172, 182, and 184 which address the
statutory requirements that apply to areas designated as nonattainment
for the ozone NAAQS and to states within the Ozone Transport Region,
respectively.
C. Regulatory Flexibility Act (RFA)
I certify that this rule will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. The rule is
a finding that the named states have not made the necessary SIP
submission for certain nonattainment areas and/or states in the OTR to
meet the requirements of part D of Title I of the CAA.
D. Unfunded Mandates Reform Act of 1995 (UMRA)
This action does not contain any unfunded mandate as described in
UMRA 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or tribal governments or the private sector.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. This rule finds that two states have failed to
submit SIP revisions that satisfy the nonattainment area planning
requirements under
[[Page 71388]]
sections 172 and 182 of the CAA, and/or the OTR requirements under
section 184 of the CAA. No tribe is subject to the requirement to
submit an implementation plan under section 172 or under subpart 2 of
part D of Title I of the CAA. Thus, Executive Order 13175 does not
apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern health or safety risks that the EPA has
reason to believe may disproportionately affect children, per the
definition of ``covered regulatory action'' in section 2-202 of the
Executive Order. This action is not subject to Executive Order 13045
because it is a finding that several states failed to submit SIP
revisions that satisfy the nonattainment area planning requirements
under sections 172 and 182 of the CAA, and/or the OTR requirements
under Section 184, and does not directly or disproportionately affect
children.
HI. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
IJ. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes the human health or environmental risk addressed
by this action will not have potential disproportionately high and
adverse human health or environmental effects on minority, low-income,
or indigenous populations. In finding that two states have failed to
submit SIP revisions that satisfy the nonattainment area planning
requirements under sections 172 and 182 of the CAA, and/or the OTR
requirements under section 184 of the CAA, this action does not
directly affect the level of protection provided to human health or the
environment.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
L. Judicial Review
Section 307(b)(1) of the CAA indicates which Federal Courts of
Appeal have venue for petitions of review of final actions by the EPA
under the CAA. This section provides, in part, that petitions for
review must be filed in the United States Court of Appeals for the
District of Columbia Circuit if (i) the agency action consists of
``nationally applicable regulations promulgated, or final actions
taken, by the Administrator,'' or (ii) such action is locally or
regionally applicable, but ``such action is based on a determination of
nationwide scope or effect and if in taking such action the
Administrator finds and publishes that such action is based on such a
determination.''
This final action is nationally applicable. To the extent a court
finds this final action to be locally or regionally applicable, the EPA
finds that this action is based on a determination of ``nationwide
scope or effect'' within the meaning of CAA section 307(b)(1). This
final action consists of findings of failure to submit required SIPs
from two states in the OTR, one with a Moderate nonattainment area,
located in two of the ten EPA Regions, and in two different federal
judicial circuits. This final action is also based on a common core of
factual findings concerning the receipt and completeness of the
relevant SIP submittals. For these reasons, this final action is
nationally applicable or, alternatively, to the extent a court finds
this action to be locally or regionally applicable, the Administrator
has determined that this final action is based on a determination of
nationwide scope or effect for purposes of CAA section 307(b)(1).
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 District of Columbia Circuit within 60 days from the date this
final action is published in the Federal Register. Filing a petition
for reconsideration by the Administrator of this final action does not
affect the finality of the action for the purposes of judicial review,
nor does it extend the time within which a petition for judicial review
must be filed, and shall not postpone the effectiveness of such rule or
action.
List of Subjects in 40 CFR Part 52
Environmental protection, Administrative practice and procedures,
Air pollution control, Approval and promulgation of implementation
plans, Intergovernmental relations, and Reporting and recordkeeping
requirements.
Michael S. Regan,
Administrator.
[FR Doc. 2021-27213 Filed 12-15-21; 8:45 am]
BILLING CODE 6560-50-P
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