[Federal Register Volume 85, Number 221 (Monday, November 16, 2020)]
[Rules and Regulations]
[Pages 72963-72966]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24488]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2020-0485; FRL-10016-24-OAR]
RIN 2060-AU95


Findings of Failure To Submit State Implementation Plan Revisions 
in Response to the 2016 Oil and Natural Gas Industry Control Techniques 
Guidelines for the 2008 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 five states 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) in certain nonattainment areas for the 2008 ozone 
National Ambient Air Quality Standards (NAAQS) and in states in the 
ozone transport region (OTR). The states that failed to submit the 
required SIP revisions to address the CTG-related RACT requirements are 
California, Connecticut, New York, Pennsylvania, and Texas. 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 December 16, 2020.

FOR FURTHER INFORMATION CONTACT: General questions concerning this 
document should be addressed to C. W. Stackhouse, 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) 541-5208; 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. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs
    C. Paperwork Reduction Act (PRA)
    D. Regulatory Flexibility Act (RFA)
    E. Unfunded Mandates Reform Act of 1995 (UMRA)
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal
    Governments
    H. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    I. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution or Use
    J. National Technology Transfer and Advancement Act (NTTAA)
    K. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority and Low Income Populations
    L. Congressional Review Act (CRA)
    M. 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-

[[Page 72964]]

HQ-OAR-2020-0485. 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 closed to the public, with 
limited exceptions, to reduce the risk of transmitting COVID-19. Our 
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 
document, please contact the appropriate EPA Regional Office:

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           Regional offices                          States
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EPA Region 1: Mr. John Rogan, Chief,    Connecticut.
 Air Quality Branch, EPA Region 1, 1
 Congress Street, Suite 1100, Boston,
 MA 02203. [email protected].
EPA Region 2: Mr. Kirk Wieber, Chief,   New York.
 Air Program Branch, EPA Region 2, 290
 Broadway, New York, NY 10007.
 [email protected].
EPA Region 3: Ms. Susan Spielberger,    Pennsylvania.
 Associate Director, Office of Air
 Program Planning, EPA Region 3, 1650
 Arch Street, Philadelphia, PA 19103.
 [email protected].
EPA Region 6: Mr. Guy Donaldson,        Texas.
 Chief, State Planning and
 Implementation Branch, EPA Region 6,
 1201 Elm Street, Suite 500, Dallas,
 TX 75270. [email protected].
EPA Region 9: Ms. Doris Lo, Chief, Air  California.
 Planning Office, EPA Region 9, 75
 Hawthorne Street, San Francisco, CA
 94105. [email protected].
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II. Background

    On March 27, 2008, the EPA revised 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 0.075 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 is less than or equal 
to 0.075 ppm.\2\
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    \1\ 73 FR 16436 (March 27, 2008).
    \2\ 40 CFR 50.15.
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    Promulgation of revised NAAQS triggers a requirement for the EPA to 
designate areas of the country as nonattainment, attainment, or 
unclassifiable for the standards; for the ozone NAAQS, this also 
involves classifying any nonattainment areas at the time of initial 
area designation.\3\ Ozone nonattainment areas are classified based on 
the severity of their ambient ozone levels (as determined based on an 
area's ``design value,'' which represents air quality in the area 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 51.1103 for the design value thresholds for each 
classification for the 2008 ozone NAAQS.
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    On May 21 and June 11, 2012, respectively, the EPA issued two 
separate rules which cumulatively designated 46 areas throughout the 
country as nonattainment for the 2008 ozone NAAQS, effective July 20, 
2012, 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 an 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.
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    \6\ 77 FR 30088 (May 21, 2012) and 77 FR 34221 (June 11, 2012).
    \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 announced a final CTG document for 
reducing VOC emissions from existing oil and natural gas industry 
equipment and processes.\8\ As stated in that announcement, ``[s]ection 
182(b)(2)(A) of the CAA requires that for areas designated 
nonattainment for an ozone [NAAQS]. . .and classified as Moderate [or 
above], states must revise their SIP to include provisions to implement 
RACT for each category of VOC sources covered by a CTG document.'' Id. 
``The CAA also imposes the same requirement on states in Ozone 
Transport Regions.'' Id. The EPA provided a two-year period starting 
from October 27, 2016, for states to submit SIP revisions addressing 
RACT for VOC sources covered by the CTG (i.e., SIP submissions were due 
from affected states to the EPA by October 27, 2018). 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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    Therefore, in response to the 2016 oil and natural gas industry 
CTG, RACT SIP revisions were due for EPA review and approval from 
states with

[[Page 72965]]

nonattainment areas classified as Moderate or higher for the 2008 ozone 
NAAQS (a total of 25 SIP revisions for 21 nonattainment areas, some of 
which are multistate nonattainment areas), as well as the 12 states and 
the District of Columbia that comprise the OTR. 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 were 
required to make a SIP submission that could be comprised of a 
``negative declaration'' stating as much.
    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 reducing VOC emissions 
from existing oil and natural gas industry equipment and processes as 
of the date of this action.

 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 2008 Ozone NAAQS
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          State                  Nonattainment area/OTR state               Classification          EPA region
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CA......................  San Diego County nonattainment area.......  Serious...................               9
CT......................  Greater Connecticut nonattainment area....  Serious...................               1
CT......................  CT portion of New York-N New Jersey-Long    Serious...................               1
                           Island nonattainment area.
CT......................  CT--OTR state.............................  OTR.......................               1
NY......................  NY portion of New York-N New Jersey-Long    Serious...................               2
                           Island nonattainment area.
NY......................  NY--OTR state.............................  OTR.......................               2
PA......................  PA--OTR state.............................  OTR.......................               3
TX......................  Dallas-Fort Worth nonattainment area......  Serious...................               6
TX......................  Houston-Galveston-Brazoria nonattainment    Serious...................               6
                           area.
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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 action, 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.\10\ 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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    \10\ 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 October 27, 2018, 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 
2008 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 document 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. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not an Executive Order 13771 regulatory action 
because this

[[Page 72966]]

action is not significant under Executive Order 12866

C. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the provisions of the PRA. This final action does not establish any new 
information collection requirement apart from what is already required 
by law. This action 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.

D. Regulatory Flexibility Act (RFA)

    I certify that this action 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. This action 
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.

E. 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.

F. 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.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. This action finds that several 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. 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.

H. 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.

I. 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.

J. National Technology Transfer and Advancement Act (NTTAA)

    This action does not involve technical standards.

K. 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 several 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.

L. 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).

M. 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 five states with nonattainment areas and/or in the OTR, located in 
five of the 10 EPA Regions, and in four 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, Incorporation by reference, Intergovernmental relations, 
Reporting and recordkeeping requirements.

Anne L. Austin,
Principal Deputy Assistant Administrator.
[FR Doc. 2020-24488 Filed 11-13-20; 8:45 am]
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