[Federal Register Volume 61, Number 147 (Tuesday, July 30, 1996)]
[Rules and Regulations]
[Pages 39593-39597]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19204]


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[[Page 39594]]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA065-4026a; FRL-5535-2]


Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; General Operating Permit and Plan Approval Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the Commonwealth of Pennsylvania which amends 25 Pa. Code 
Chapter 127 to include a new Subchapter H entitled ``General Plan 
Approvals and Operating Permits.'' The intended effect of this action 
is to enable Pennsylvania to create Federally enforceable general State 
operating permit and general plan approval conditions for sources of 
criteria pollutants pursuant to Section 110 of the Clean Air Act (the 
``Act''). In order to extend the Federal enforceability of general 
State operating permits and general plan approvals to include hazardous 
air pollutants (HAPs), EPA is also approving Pennsylvania's general 
plan approval and general operating permits program regulations 
pursuant to section 112(l) of the Act.

EFFECTIVE DATE: This final rule is effective September 30, 1996 unless 
notice is received on or before August 29, 1996 that adverse or 
critical comments will be submitted. If the effective date is delayed, 
timely notice will be published in the Federal Register.

ADDRESSES: Comments may be mailed to David Arnold, Chief, Permit 
Programs Section, Mailcode 3AT23, U.S. Environmental Protection Agency, 
Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 19107. 
Copies of the documents relevant to this action are available for 
public inspection during normal business hours at the Air, Radiation, 
and Toxics Division, U.S. Environmental Protection Agency, Region III, 
841 Chestnut Building, Philadelphia, Pennsylvania 19107; the Air and 
Radiation Docket and Information Center, U.S. Environmental Protection 
Agency, 401 M Street, SW, Washington, DC 20460; and Pennsylvania 
Department of Environmental Protection, Rachel Carson State Office 
Building, P.O. Box 8468, Harrisburg, Pennsylvania 17105-8468.

FOR FURTHER INFORMATION CONTACT: Michael H. Markowski, 3AT23, U.S. 
Environmental Protection Agency, Region 3, 841 Chestnut Building, 
Philadelphia, Pennsylvania, 19107, (215) 566-2063.

SUPPLEMENTARY INFORMATION: On May 18, 1995, the Pennsylvania Department 
of Environmental Protection (PADEP) submitted to EPA for review and 
approval a revision to its State Implementation Plan (SIP) designed to 
create federally enforceable limits on a source's potential to emit. 
The submittal supplements the Commonwealth's existing plan approval and 
State operating permit programs, codified in Subchapters B and F, 
respectively, and consists of regulations establishing a general State 
operating permit program and a general plan approval program, codified 
in Chapter 127, Subchapter H of the Pennsylvania Code. In a March 7, 
1996 Federal Register notice, EPA proposed approval of Pennsylvania's 
operating permit and plan approval programs codified in Subchapters F 
and B, respectively, of Pennsylvania's air quality regulations. See 61 
FR 9125. However, in that notice, EPA did not specifically propose 
approval of the Pennsylvania general operating permit and general plan 
approval program provisions codified in Subchapter H of Pennsylvania's 
air quality regulations. Therefore, EPA is approving Pennsylvania's 
general permit programs, under Subchapter H, with this separate 
rulemaking action.

Summary of SIP Revision

    Pennsylvania's general FESOP and general plan approval program 
regulations were adopted and became effective in the Commonwealth on 
November 26, 1994. The general operating permit and general plan 
approval program regulations are codified under Chapter 127, Subchapter 
H of the Commonwealth's air quality regulations. EPA found the SIP 
submittal complete on May 31, 1995.
    Pennsylvania's proposed SIP revision submitted to EPA on May 18, 
1995 will strengthen the Pennsylvania SIP by establishing a 
comprehensive general operating permit and general plan approval (i.e., 
construction permit) program. Pennsylvania refers to new source review 
construction permits as ``plan approvals.'' Section 121.1 of the 
Pennsylvania air quality regulations defines general plan approvals and 
general operating permits as plan approvals and operating permits that 
are issued for a category of stationary air contamination sources that 
are similar in nature and that can be adequately regulated using 
standardized specifications and conditions. For clarity, EPA notes that 
the PADEP's general permit program codified under Subchapter H of the 
Pennsylvania regulations is intended only to supplement, but not 
replace, the PADEP's existing plan approval and operating permit 
programs codified under Subchapters B and F, respectively, of the 
Pennsylvania regulations.

EPA Evaluation

    On June 28, 1989 (54 FR 27274) EPA published criteria for approving 
and incorporating into the SIP regulatory programs for the issuance of 
federally enforceable state operating permits. Permits issued pursuant 
to an operating permit program meeting these criteria and approved into 
the SIP are considered federally enforceable. EPA has encouraged States 
to consider developing such programs in conjunction with Title V 
operating permit programs for the purpose of creating federally 
enforceable limits on a source's potential to emit. This mechanism 
would enable sources to reduce their potential to emit of criteria 
pollutants to below the Title V applicability thresholds and avoid 
being subject to Title V. (See the guidance document entitled, 
``Limitation of Potential to Emit with Respect to Title V Applicability 
Thresholds,'' dated September 18, 1992, from John Calcagni, Director of 
EPA's Air Quality Management Division).
    As part of this action, EPA is approving Pennsylvania's general 
plan approval (i.e., construction permit) and general operating permit 
programs pursuant to Section 112(l) of the Clean Air Act for the 
purpose of allowing the Commonwealth to issue general plan approvals 
and general operating permits which limit source's potential to emit 
hazardous air pollutants (HAPs). Section 112(l) of the Clean Air Act 
provides the underlying authority for controlling emissions of HAPs. 
Therefore, in order to extend federal enforceability of the 
Commonwealth's general operating permit and general plan approval 
programs to include HAPs, EPA is today approving Pennsylvania's general 
plan approval and general operating permit programs pursuant to Section 
112(l) of the Act.
    Limiting a source's potential to emit to below major source 
thresholds through the use of federally enforceable terms and 
conditions in a general State operating permit or general plan approval 
exempts such a source from Title V permitting requirements. General 
State operating permit programs which have been incorporated into the 
SIP renders general operating permits

[[Page 39595]]

issued pursuant to such a program as federally enforceable, and the 
program itself is referred to as a federally enforceable State 
operating permit program, or ``FESOP'' program. This FESOP mechanism 
will allow sources to reduce their potential to emit to below the Title 
V applicability thresholds and avoid being subject to Title V. 
Similarly, general construction permit (i.e., plan approval) programs 
which have been incorporated into the SIP renders general construction 
permits, or, in Pennsylvania's case, general plan approvals, issued 
pursuant to such a program as federally enforceable.

A. Federal Criteria for Approval of Pennsylvania's General FESOP and 
General Plan Approval Programs Pursuant to Section 110 of the Act

    The five criteria for approving a State operating permit program 
into a SIP were set forth in the June 28, 1989 Federal Register 
document (54 FR 27282). Permits issued under an approved program are 
federally enforceable and may be used to limit the potential to emit of 
sources of criteria air pollutants. Pennsylvania's general FESOP 
provisions of Subchapter H, Chapter 127 meet the June 28, 1989 criteria 
by ensuring that the limits will be permanent, quantifiable, and 
practically enforceable and by providing adequate notice and comment to 
both EPA and the public. Please refer to the Technical Support Document 
for a thorough analysis of the June 28, 1989 criteria as applied to 
Pennsylvania's general FESOP program.
    EPA is approving pursuant to Section 110 of the Act and the 
approval criteria specified in the June 28, 1989 Federal Register 
document the following regulations that were submitted to make general 
operating permits and general plan approvals federally enforceable: 
Subchapter H, Chapter 127, Sections 127.601 through 127.622, inclusive.
    As described above, Pennsylvania also submitted on May 18, 1995 for 
EPA approval revisions to its minor new source review construction 
permit (i.e., plan approval) program. Pennsylvania's new source review 
construction permit is called a ``plan approval.'' These proposed 
revisions to the Pennsylvania SIP establish a comprehensive general 
plan approval program under Chapter 127, Subchapter H of the 
Commonwealth's air quality regulations designed to supplement the 
Commonwealth's existing plan approval program codified under Chapter 
127, Subchapter B. The Commonwealth's plan approval program has been 
part of its SIP for many years and meets the requirements in Section 
110(a)(2)(C) of the Act which requires all SIPs to provide for the 
regulation of the modification and construction of any stationary 
source within the areas covered by the plan implementation as necessary 
to assure that national ambient air quality standards (NAAQS) are 
achieved. Pennsylvania's plan approval regulations under Subchapter B 
were originally approved by EPA into the SIP on May 31, 1972 (37 FR 
10842) for the purpose of meeting the Section 110(a)(2)(C) requirement.
    EPA notes that Pennsylvania had previously submitted, on February 
10, 1994, its new source review (NSR) construction permit program for 
review and approval, for the purpose of making the program consistent 
with the Clean Air Act Amendments of 1990. EPA is reviewing this 
program submittal and will take the appropriate approval/disapproval 
action at a later date. EPA has reviewed the proposed changes and 
additions to Pennsylvania's plan approval program which are the subject 
of this rulemaking action and has determined that they meet all 
applicable federal requirements for approval.

B. Approval of Pennsylvania's General Plan Approval and General FESOP 
Programs Under Section 112(l)

    On May 18, 1995, PADEP requested approval of Pennsylvania's general 
FESOP and general plan approval programs under Section 112 of the Act 
for the purpose of creating federally enforceable limitations on the 
potential to emit of HAPs. As described above, the Commonwealth's plan 
approval program regulations were initially approved by EPA and 
incorporated into the Pennsylvania SIP on May 31, 1972. EPA is today 
approving and incorporating into the SIP Pennsylvania's general 
operating permit and general plan approval program regulations 
submitted on May 18, 1995.
    EPA approval of the Commonwealth's general plan approval and 
general FESOP programs under Section 112(l) of the Act is necessary to 
extend Pennsylvania's authority under Section 110 of the Act to include 
authority to create federally enforceable limits on the potential to 
emit of HAPs. EPA's approval of Pennsylvania's general FESOP and plan 
approval programs pursuant to Section 110 of the Act provides a 
mechanism only for controlling criteria air pollutants which does not 
extend to HAPs. Only Section 112 of the Act provides the underlying 
authority for States to limit potential to emit of HAPs in federally 
enforceable general State operating permits and general construction 
permits. This necessitates EPA approval of the Pennsylvania general 
operating permit and general plan approval programs pursuant to Section 
112(l) of the Act.
    The criteria used by EPA for the original SIP approval of 
Pennsylvania's plan approval program are located in 40 CFR 51.160-164. 
EPA believes that the PADEP's existing plan approval program under 
Subchapter B meets the requirements of 40 CFR 51.160 through 51.164.
    EPA has determined that the five approval criteria for approving 
FESOP programs into the SIP, as specified in the June 28, 1989 Federal 
Register notice referenced above, are also appropriate for evaluating 
and approving the programs under Section 112(l). The June 28, 1989 
notice does not address HAPs because it was written prior to the 1990 
amendments to Section 112 of the Act. Hence, the following five 
criteria are applicable to FESOP approvals under Section 112(l): (1) 
The program must be submitted to and approved by EPA; (2) the program 
must impose a legal obligation on the operating permit holders to 
comply with the terms and conditions of the permit, and permits that do 
not conform with the June 28, 1989 criteria shall be deemed not 
federally enforceable; (3) the program must contain terms and 
conditions that are at least as stringent as any requirements contained 
in the SIP or enforceable under the SIP or any other Section 112 or 
other Clean Air Act standard or requirement; (4) permits issued under 
the program must contain conditions that are permanent, quantifiable, 
and enforceable as a practical matter; and (5) permits issued under the 
program must be subject to public participation. Please refer to the 
Technical Support Document for a thorough analysis of how 
Pennsylvania's general operating permits program satisfies each of the 
five approval criteria. Since the State's general operating permits 
program meets the five program approval criteria for both criteria and 
hazardous air pollutants, the program may be used to limit the 
potential to emit of both criteria and hazardous air pollutants.
    In addition to meeting the criteria discussed above, Pennsylvania's 
general plan approval and general operating permits programs for 
limiting potential to emit of HAPs must meet the statutory criteria for 
approval under Section 112(l)(5) of the Act. This section allows EPA to 
approve a program only if it: (1) contains adequate authority to assure 
compliance with any Section 112 standard or requirement; (2) provides 
for adequate resources; (3) provides for an expeditious schedule for 
assuring compliance with Section 112

[[Page 39596]]

requirements; and (4) is otherwise likely to satisfy the objectives of 
the Act.
    The EPA plans to codify the approval criteria for programs limiting 
the potential to emit of HAPs through amendments to Subpart E of 40 CFR 
part 63, the regulations promulgated to implement section 112(l) of the 
Act. (See 58 FR. 62262, November 26, 1993). The EPA currently 
anticipates that these criteria, as they apply to FESOP programs, will 
mirror those set forth in the June 28, 1989 notice, with the addition 
that the State's authority must extend to HAPs instead of or in 
addition to VOC's and PM10. The EPA currently anticipates that 
FESOP programs that are approved pursuant to Section 112(l) prior to 
the planned Subpart E revisions will have had to meet these criteria, 
and hence will not be subject to any further approval action.
    The EPA believes it has the authority under section 112(l) to 
approve programs to limit potential to emit of HAPs directly under 
section 112(l) prior to this revision to Subpart E. Section 112(l)(5) 
requires the EPA to disapprove programs that are inconsistent with 
guidance required to be issued under section 112(l)(2). This might be 
read to suggest that the ``guidance'' referred to in section 112(l)(2) 
was intended to be a binding rule. Even under this interpretation, the 
EPA does not believe that section 112(l) requires this rulemaking to be 
comprehensive. That is, it need not address every possible instance of 
approval under section 112(l). The EPA has already issued regulations 
under section 112(l) that would satisfy any section 112(l)(2) 
requirement for rulemaking. Given the severe timing problems posed by 
impending deadlines set forth in ``maximum achievable control 
technology'' (MACT) emission standards under section 112 and for 
submittal of Title V permit applications, the EPA believes it is 
reasonable to read section 112(l) to allow for approval of programs to 
limit potential to emit prior to promulgation of a rule specifically 
addressing this issue. The EPA is therefore approving Pennsylvania's 
general FESOP and general plan approval programs now so that 
Pennsylvania may begin to issue federally enforceable general operating 
permits and general plan approvals limiting potential to emit as soon 
as possible. This will allow Pennsylvania to immediately begin 
exempting sources from Title V requirements where this is possible and 
appropriate.
    The EPA is approving Pennsylvania's general FESOP and general plan 
approval programs pursuant to Section 112(l) of the Act because the 
programs meet applicable approval criteria specified in the June 28, 
1989 Federal Register document and in Section 112(l)(5) of the Act. 
Regarding the statutory criteria of Section 112(l)(5) of the Act 
referred to above, the EPA believes Pennsylvania's general FESOP and 
general plan approval programs contain adequate authority to assure 
compliance with Section 112 requirements since neither program provides 
for waiving any Section 112 requirement(s). Sources would still be 
required to meet Section 112 requirements applicable to non-major 
sources. Regarding adequate resources, Pennsylvania has included in its 
general FESOP and general plan approval programs provisions for 
collecting fees from sources making application for either a general 
plan approval, a general operating permit, or both. Furthermore, EPA 
believes that Pennsylvania's general FESOP and general plan approval 
programs provide for an expeditious schedule for assuring compliance 
because they allow a source to establish a voluntary limit on potential 
to emit and avoid being subject to a federal Clean Air Act requirement 
applicable on a particular date. Nothing in Pennsylvania's general plan 
approval or general operating permit programs would allow a source to 
avoid or delay compliance with a federal requirement if it fails to 
obtain the appropriate federally enforceable limit by the relevant 
deadline. Finally, Pennsylvania's general FESOP and general plan 
approval programs are consistent with the objectives of the Section 112 
program because their purpose is to enable sources to obtain federally 
enforceable limits on potential to emit to avoid major source 
classification under Section 112. The EPA believes that this purpose is 
consistent with the overall intent of Section 112.
    EPA has concluded that the general operating permit and general 
plan approval programs submitted by Pennsylvania meet the requirements 
of EPA's June 28, 1989 notice and the statutory requirements under 
section 112(l) of the Act and is therefore approving the programs. For 
more detailed information on the analysis of the State's submission, 
please refer to the technical support document (TSD) included in the 
docket at the address noted above.
    EPA is approving this SIP revision without prior proposal because 
the Agency views this as a noncontroversial amendment and anticipates 
no adverse comments. However, in a separate document in this Federal 
Register publication, EPA is proposing to approve the SIP revision 
should adverse or critical comments be filed. This action will be 
effective September 30, 1996 unless, by August 29, 1996, adverse or 
critical comments are received.
    If EPA receives such comments, this action will be withdrawn before 
the effective date by publishing a subsequent document that will 
withdraw the final action. All public comments received will then be 
addressed in a subsequent final rule based on this action serving as a 
proposed rule. EPA will not institute a second comment period on this 
action. Any parties interested in commenting on this action should do 
so at this time. If no such comments are received, the public is 
advised that this action will be effective on September 30, 1996.

Final Action

    EPA is approving as revisions to the Pennsylvania SIP changes to 
Chapter 127 of the Pennsylvania Code which were submitted on May 18, 
1995. The submittal revises Pennsylvania's existing plan approval and 
FESOP programs by adding a comprehensive general FESOP and general plan 
approval program under Chapter 127, Subchapter H of the Commonwealth's 
air quality regulations.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any State implementation plan. Each request for revision to 
the State implementation plan shall be considered separately in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, part D of the 
Clean Air Act do not create any new requirements but simply approve 
requirements that the State is already imposing. Therefore, because the 
Federal SIP approval does not impose any new requirements, the 
Administrator certifies that it does not have a significant impact on 
any small entities affected. Moreover, due to the nature of the 
Federal-State relationship

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under the Clean Air Act, preparation of a flexibility analysis would 
constitute Federal inquiry into the economic reasonableness of state 
action. The Clean Air Act forbids EPA to base its actions concerning 
SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 
255-66 (1976); 42 U.S.C. 7410(a)(2).
    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new 
Federal requirements. Accordingly, no additional costs to State, local, 
or tribal governments, or to the private sector, result from this 
action.
    Under section 801(a)(1)(A) of the Administrative Procedures Act 
(APA) as amended by the Small Business Regulatory Enforcement Fairness 
Act of 1996, EPA submitted a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives and the Comptroller General of the General Accounting 
Office prior to publication of the rule in today's Federal Register. 
This rule is not a ``major rule'' as defined by section 804(2) of the 
APA as amended.
    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for 
Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from E.O. 12866 review.
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by September 30, 1996. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule 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 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, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides.

    Dated: June 26, 1996.
Stanley L. Laskowski,
Acting Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

    Authority: 42 U.S.C. 7401-7671q.

Subpart NN--Pennsylvania

    2. Section 52.2020 is amended by adding paragraph (c)(111) to read 
as follows:


Sec. 52.2020  Identification of plan.

* * * * *
    (c) * * *
    (111) Revisions to the Operating Permit and Plan Approval 
Regulations to add Subchapter H, ``General Plan Approvals and Operating 
Permits'', submitted on May 18, 1995 by the Pennsylvania Department of 
Environmental Resources:
    (i) Incorporation by reference.
    (A) Letter of May 15, 1995 from the Pennsylvania Department of 
Environmental Resources transmitting Pennsylvania's general plan 
approval and general operating permit programs.
    (B) The following amendments to Title 25, Chapter 127, effective on 
November 26, 1994: Sec. 127.601, 127.611, 127.612, 127.621, and 
127.622.
    (ii) Additional material.
    (A) Remainder of Pennsylvania's May 18, 1995 submittal.
    3. Section 52.2061 is amended by adding paragraph (b) to read as 
follows:


Sec. 52.2061  Operating permits.

* * * * *
    (b) Emission limitations and related provisions which are 
established in Pennsylvania general operating permits as federally 
enforceable conditions shall be enforceable by EPA. EPA reserves the 
right to deem general permit conditions not federally enforceable. Such 
a determination will be made according to appropriate procedures, and 
be based upon the general permit, general permit approval procedures, 
or general permit requirements which do not conform with the general 
operating permit program requirements or the requirements of EPA's 
underlying regulations.
    4. Section 52.2062 is amended by adding paragraph (b) to read as 
follows:


Sec. 52.2062  Plan approvals.

* * * * *
    (b) Emission limitations and related provisions which are 
established in Pennsylvania general plan approvals as federally 
enforceable conditions shall be enforceable by EPA. EPA reserves the 
right to deem general plan approval conditions not federally 
enforceable. Such a determination will be made according to appropriate 
procedures, and be based upon the general plan approval, the relevant 
approval procedures, or plan requirements which do not conform with the 
general plan approval program requirements or the requirements of EPA's 
underlying regulations.

[FR Doc. 96-19204 Filed 7-29-96; 8:45 am]
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