[Federal Register Volume 86, Number 183 (Friday, September 24, 2021)]
[Rules and Regulations]
[Pages 52993-52996]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20494]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2020-0528; FRL-8974-02-R3]


Air Plan Approval; Maryland; Negative Declaration for the Oil and 
Gas Industry

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a state 
implementation plan (SIP) revision submitted by the State of Maryland. 
This revision provides Maryland's determination, via a negative 
declaration, that there are no sources within its borders subject to 
EPA's 2016 Oil and Natural Gas control techniques guidelines (2016 Oil 
and Gas CTG). EPA is approving these revisions to the Maryland SIP in 
accordance with the requirements of the Clean Air Act (CAA).

DATES: This final rule is effective on October 25, 2021.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2020-0528. All documents in the docket are listed on 
the https://www.regulations.gov website. Although listed in the index, 
some information is not publicly available, e.g., confidential business 
information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available through 
https://www.regulations.gov, or please contact the person identified in 
the FOR FURTHER INFORMATION CONTACT section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: David Talley, 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-
2117. Mr. Talley can also be reached via electronic mail at 
<a href="/cdn-cgi/l/email-protection#c3b7a2afafa6baeda7a2b5aaa783a6b3a2eda4acb5"><span class="__cf_email__" data-cfemail="5327323f3f362a7d3732253a37133623327d343c25">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background

    On February 9, 2021 (86 FR 8742), EPA published a notice of 
proposed rulemaking (NPRM) for the State of Maryland. In the NPRM, EPA 
proposed approval of Maryland's negative declaration SIP submittal for 
the 2016 Oil and Gas CTG. On June 18, 2020, the Maryland Department of 
the Environment (MDE) submitted the negative declaration for the 2016 
Oil and Gas CTG as a revision to the Maryland SIP.
    The CAA regulates emissions of nitrogen oxides (NO<INF>X</INF>) and 
volatile organic compounds (VOCs) to prevent photochemical reactions 
that result in ozone formation. Reasonably available control technology 
(RACT) is a strategy for reducing NO<INF>X</INF> and VOC emissions from 
stationary sources within designated nonattainment areas classified as 
moderate or above that are not meeting the national ambient air quality 
standards (NAAQS) for ozone. 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.
    Control techniques guidelines (CTGs) and alternative control 
techniques (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. CAA 
section 182(b)(2)(A) requires that for ozone nonattainment areas 
classified as moderate or above, states must revise their SIPs to 
include provisions to implement RACT for each category of VOC sources 
covered by a CTG document. CAA section 184(b)(1)(B) extends the RACT 
obligation to all areas of states within the ozone transport region 
(OTR), including Maryland.

[[Page 52994]]

    States subject to RACT requirements are required to enact controls 
for sources subject to CTGs that are at least as stringent as those 
found within the CTG, either via the adoption of regulations or by 
issuance of single source permits that outline what the source is 
required to do to meet RACT. 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. See 
80 FR 12264, 12278. The same negative declaration is allowed by the 
2015 ozone NAAQS implementation rule.\1\
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    \1\ The majority of the provisions for implementing the 2008 
ozone NAAQS (including those related to negative declarations) were 
retained without revision for purposes of implementing the 2015 
ozone NAAQS. See ``Implementation of the 2015 National Ambient Air 
Quality Standards for Ozone: Nonattainment Area State Implementation 
Plan Requirements'' (2015 Ozone Implementation Rule) 83 FR 62998 
(December 6, 2018); and 40 CFR 51.1301.
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    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,'' (2016 Oil and Gas CTG). This CTG 
provided information to state, local, and tribal air agencies to assist 
in determining RACT for VOC emissions from certain VOC emission sources 
within the oil and natural gas industry. 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. See 2016 Oil and Gas CTG, p. 8-1.

II. Summary of SIP Revision and EPA Analysis

    According to Maryland's June 18, 2020 submittal, MDE conducted a 
review of potential sources subject to the 2016 Oil and Gas CTG. This 
review consisted of a search of Maryland's oil and gas well records, 
air permit records, EPA greenhouse gas reporting records, and the 
Standard Industrial Classification (SIC) system. MDE's search 
identified a total of 13 facilities in Maryland operating in the 
production, processing, or transmission and storage segments of the oil 
and natural gas industry. However, none of these facilities had storage 
tanks or production wells that met or exceeded the applicability 
criteria of the CTG. MDE identified five facilities in the natural gas 
transmission sector, but determined that none of them had storage tanks 
with the potential to emit (PTE) more than 6 tons per year (tpy) of 
VOCs, which is the threshold for applicability of the CTG.\2\ 
Additionally, MDE identified eight active individual production wells, 
but determined that none of these exceeded the 15 barrel equivalents 
per day per well, which is the threshold for CTG applicability.\3\ 
Other specific requirements of the 2016 Oil and Gas CTG and the 
rationale for EPA's proposed action are explained in the NPRM and will 
not be restated here.
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    \2\ See 2016 Oil and Gas CTG at 3-6.
    \3\ See Id. at 3-7.
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III. EPA's Response to Comments Received

    EPA received four sets of comments on our proposed approval of 
Maryland's
    June 18, 2020 negative declaration SIP submittal. One comment was 
generally in favor of EPA's proposed action and will not be addressed 
in this action. A summary of the other comments and EPA's response is 
provided herein. All comments received are included in the docket for 
this action.
    Comment 1: The commenter asserts that the tanks and production 
wells identified by MDE as being potentially subject to the CTG, but 
determined by MDE to not meet the applicability thresholds and 
therefore not subject to the 2016 Oil and Gas CTG, should have 
mechanisms to limit their PTE to ensure that they remain below the 
thresholds. The commenter provides the example of synthetic minor 
permits. The commenter further asserts that relying on emission factors 
or other engineering estimates would be arbitrary given the ``many 
variables involved.''
    Response 1: EPA disagrees with the commenter's assertions. First, 
AP42 emissions factors and the engineering estimates (i.e. modelling) 
relied upon in Maryland's submittal are generally accepted and are used 
regularly in place of direct emissions measurement. Therefore, MDE's 
reliance upon them for the purposes of this negative declaration is not 
``arbitrary.'' EPA further disagrees with the commenter's assertion 
that the reported facilities should have synthetic minor permits or 
other enforceable limits on their PTE, and that it is ``implausible'' 
to claim that these facilities could have PTEs below the applicability 
thresholds absent such limits. In support of this claim, the commenter 
offers merely the ``many variables involved,'' such as varying 
composition of the gas over time. EPA's review of Maryland's submittal 
shows that the referenced sources all report emissions well below the 
thresholds. For the potentially affected storage vessels (tanks), 
Maryland provided extensive documentation, including calculations that 
considered ambient temperature variations, throughput, and chemical 
composition of the liquids stored in the tanks. All emissions reported 
were considerably under the applicability threshold for storage 
vessels. For example, of the six potentially affected tanks identified 
at the Dominion Cove Point facility, the highest emissions reported 
were 0.02 tpy of VOC, which is significantly below the 6 tpy threshold. 
See Attachment A of MDE's June 18, 2020 submittal. The overwhelming 
majority of the tanks analyzed reported emissions of only a fraction of 
a ton per year. The highest reported emissions were for the two 
condensate storage tanks at the Accident compressor station. Each of 
those had calculated emissions of 1.2 tpy, still well below the 
threshold. See Attachment B of MDE's June 18, 2020 submittal.
    Similarly, EPA disagrees that the identified production wells need 
enforceable limits on their production. First, the commenter has 
provided no evidence to contradict MDE's evaluation of the wells' 
outputs. Second, MDE certified in their submittal that their evaluation 
of the production wells was based on a search of their permit records. 
Each of the listed wells was constructed under a permit issued by 
Maryland. MDE is therefore well positioned to review the data 
associated with each of those permits and make an accurate 
determination of each well's output. EPA finds no reason to determine 
that MDE's determination with respect to the wells was unreasonable.
    EPA believes that there is a sufficient margin between the reported 
emissions and the applicability threshold to determine that the 
identified sources do not need enforceable PTE limits in order for EPA 
to approve Maryland's negative declaration. Furthermore, Federal 
regulations are only necessary if a covered source exceeds the 
applicability thresholds established by the CTG. Maryland has certified 
that none of the sources within its jurisdiction exceed these 
thresholds. Should any of the reported sources exceed the thresholds in 
the future; or should a new source of the type covered by the existing 
CTG emitting more than either threshold be constructed in the state 
after approval of a negative declaration, EPA expects the

[[Page 52995]]

state to develop a regulation and submit it to EPA for approval into 
the SIP in accordance with the relevant timing provided for by the CAA. 
Additionally, it is likely that any significant change in the operation 
of the existing facilities which would impact their PTE would be 
subject to preconstruction review by MDE. The same is true for the 
construction of new sources. At this time, because Maryland does not 
have any sources subject to the 2016 Oil and Gas CTG, no regulation is 
required to be developed and submitted for EPA approval. Therefore, we 
disagree with the commenter and are finalizing our approval of 
Maryland's negative declaration.
    Comment 2: The commenter asserts that EPA should disapprove MDE's 
June 18, 2020 submittal because it relies on TANKS modelling, which 
utilizes outdated information, including temperature/climate data which 
is ``all over 10 years old.'' The commenter further takes issue with 
the use in the model of 70 degrees Fahrenheit (F) as an average 
temperature, asserting that summer temperatures routinely exceed that 
mark, and that it is ``settled science'' that as temperatures rise, so 
do VOC emissions. The commenter asserts that EPA ``cannot assume with a 
straight face'' that these tanks will only operate at 70 degrees F, 
that the 70 degrees F assumption is only valid for indoor, climate-
controlled situations, and that MDE's negative declaration should be 
disapproved because the model was improperly performed and did not 
consider ``current and realistic temperature and climatic data.'' 
Finally, the commenter asserts that the model should be run using 
``average climatic data for each month.''
    Response 2: EPA disagrees with the commenter's assertions. First, 
the CTG provides flexibility and does not require a specific method for 
calculating VOC emissions. The model rule language provided in the CTG 
requires only that ``emissions must be calculated using a generally 
accepted model or calculation methodology.'' \4\ The new source 
performance standards of title 40 of the Code of Federal Regulations 
(CFR) part 60, subpart OOOOa, (also applying to the oil and natural gas 
sector) include similar language. See 40 CFR 60.5395a(a)(3). E&P TANKS 
is a ``generally accepted'' model, and therefore an appropriate tool 
for calculating VOC emissions for the purpose of this negative 
declaration. In fact, the model was one of the resources utilized by 
EPA in the development of the CTG.\5\ Second, while EPA acknowledges 
that ambient temperatures impact VOC emissions from storage vessels, we 
do not agree that the assumption of 70 degrees F as an average 
temperature within the model is inappropriate. Furthermore, contrary to 
the commenter's assertion, the use of 70 degrees as an average is not 
an assumption that the tank will never operate above that temperature. 
MDE identified six facilities that had tanks potentially subject to the 
CTG: the Dominion Cove Point LNG facility, the Dominion Myersville 
compressor station, the Enbridge Eastern Accident compressor station, 
the Enbridge Accident underground storage facility, the Williams 
Transco Ellicott City compressor station, and the TransCanada 
compressor station. The documentation provided by MDE included 
submittals from the potentially impacted sources, including the results 
of TANKS modelling to evaluate their particular storage vessels. Of the 
six facilities identified, only the Dominion facilities appear to have 
run the model with an ``across the board'' assumption of 70 degrees as 
the ambient temperature.\6\ See attachments A-D of MDE's June 18, 2020 
submittal. Temperature data from the National Weather Service for the 
Baltimore \7\ area for 2020 show that only three months--June, July and 
August--exceeded an average monthly temperature of 70 degrees (75.1, 
82.6, and 78.7 degrees, respectively).\8\ The other nine months were 
below 70. Using 70 degrees as an average for all twelve months is 
therefore a conservative approach, as the over-estimating for nine 
months offsets the potential under-estimating for the other three. 
Furthermore, Dominion reported emissions for six tanks, five at the 
Cove Point facility, and one at the Myersville compressor station. Of 
those tanks, only one reported any emissions at all. That tank, a 
38,152 gallon tank, containing ``hydrocarbons,'' reported emissions of 
only 0.02 tpy AND is equipped with a control device (emissions are 
piped via a closed loop to a flare). See Attachment A of MDE's June 18, 
2020 submittal. The modelling for the Enbridge tanks, as well as the 
Williams Transco tanks, appears to have taken into account daily 
temperature variations and other variables to calculate actual monthly 
averages. See Attachments B and C of MDE's June 18, 2020 submittal. 
This approach, which is in line with the commenter's assertion, also 
results in emissions that, in all cases, are well below the 6 tpy 
threshold. We find these analyses (and MDE's reliance upon them) to be 
reasonable. Therefore, we disagree with the commenter and are 
finalizing our approval of Maryland's negative declaration.
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    \4\ See section A.2(i) of Model Rule Language; 2016 Oil and Gas 
CTG; Appendix A at A-8.
    \5\ See 2016 Oil and Gas CTG at 4-3.
    \6\ MDE's submittal did not include documentation for the 
modelling runs at the TransCanada compressor station. Rather, an 
email from the company to MDE indicated that they performed TANKS 
modelling on four tanks, with a total emission estimate across all 
units of 0.66 tpy. See attachment D of MDE's June 18, 2020 
submittal.
    \7\ Data for the Cove Point area was not immediately available, 
but Baltimore is close enough to provide a representative example.
    \8\ See https://www.weather.gov/media/lwx/climate/bwitemps.pdf
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    Comment 3: The commenter asserts that EPA must disapprove MDE's 
negative declaration because ``the standards are not scientific or 
related to scientific procedures and are not consistent with the 
state's development priorities for air, water, and noise.'' Further, 
the commenter asserts that the SIP is not consistent with EPA's ``study 
on methane emissions from drilling operations,'' that the guidelines 
``cannot be promulgated under the state's authority'' because they were 
``derived from an out-of-date methodology used in 2012,'' and that 
MDE's own review of ``EPA's 2012 study of hydraulic fracturing fluid 
emissions'' identified a number of concerns about the findings.
    Response 3: EPA disagrees with the commenter's assertion that we 
must disapprove MDE's June 18, 2020 submittal. First, the commenter 
makes several references to ``hydraulic fracturing'' (fracking), but 
none of the wells addressed by MDE's submittal employ fracking as a 
means of extraction. Indeed, Maryland has imposed a ``fracking ban,'' 
and does not allow the practice within the State. See Md. Code Ann. 
Environment section 14-107.1. Therefore, fracking plays no role in 
MDE's negative declaration or EPA's approval. Second, it is not 
entirely clear to which allegedly out of date ``methodology'' and 
allegedly unscientific ``standards'' the commenter is referring. If the 
commenter is referring to the CTG itself, the validity of the CTG is 
not at issue in this action and will not be addressed here. This action 
relates only to MDE's certification that there are no sources within 
the State subject to the CTG. The commenter has not identified any 
flaws specific to MDE's methodology for making that determination, nor 
with EPA's proposed approval. Therefore, we disagree with the commenter 
and are finalizing our approval of Maryland's negative declaration.

IV. Final Action

    EPA is approving Maryland's negative declaration as a revision to 
Maryland's

[[Page 52996]]

SIP, to address the CAA requirements of section 182(b)(2)(A) and 
184(b)(1)(B) under the 2008 and 2015 ozone NAAQS, as they pertain to 
the 2016 Oil and Gas CTG.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
    <bullet> 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);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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
    <bullet> 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).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the State, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by November 23, 2021. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action.
    This action pertaining to Maryland's negative declaration for the 
2016 Oil and Gas CTG may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Ozone,Volatile organic compounds.

    Dated: September 15, 2021.
Diana Esher,
Acting Regional Administrator, Region III.

    For the reasons stated in the preamble, the EPA amends 40 CFR part 
52 as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart V--Maryland

0
2. In Sec.  52.1070, the table in paragraph (e) is amended by adding 
the entry ``Negative Declaration for the 2016 Oil and Gas CTG'' at the 
end of the table to read as follows:


Sec.  52.1070   Identification of plan.

* * * * *
    (e) * * *

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                                                        State
 Name of non-regulatory SIP   Applicable geographic   submittal      EPA approval date    Additional explanation
          revision                    area               date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Negative Declaration for     Statewide.............      6/18/20  9/24/21, [insert        Negative declaration
 the 2016 Oil and Gas CTG.                                         Federal Register        submitted for the
                                                                   citation].              2008 and 2015 ozone
                                                                                           national ambient air
                                                                                           quality standards.
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[FR Doc. 2021-20494 Filed 9-23-21; 8:45 am]
BILLING CODE 6560-50-P


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