[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 [www.gpo.gov]
[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 [email protected].

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 http://www.regulations.gov 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 https://www.epa.gov/dockets.

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.
 [email protected].
EPA Region 3: Mike Gordon, Chief,         Pennsylvania.
 Planning and Implementation Branch, EPA
 Region 3, 1650 Arch Street,
 Philadelphia, Pennsylvania 19103.
 [email protected].
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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 https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202004&RIN=2060-AT76 (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


