[Federal Register Volume 62, Number 236 (Tuesday, December 9, 1997)]
[Rules and Regulations]
[Pages 64722-64725]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-32189]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[PA042-4065; FRL-5925-7]
Approval and Promulgation of Air Quality Implementation Plans;
Pennsylvania New Source Review and Emissions Registry Regulation
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is granting limited approval of a State Implementation
Plan (SIP) revision submitted by the Commonwealth of Pennsylvania. This
revision requires major new and modified sources of volatile organic
compounds (VOCs), nitrogen oxides (NOX), particulate matter
(PM), particulate matter with an aerodynamic diameter of less than 10
microns (PM-
[[Page 64723]]
10), PM-10 precursors, sulfur oxides (SOX), carbon monoxide
(CO), or lead (Pb) to meet certain new source review (NSR) permitting
requirements if they are proposing to locate in a designated
nonattainment area. These requirements also apply to major new and
modified sources of VOC and NOX proposing to locate in the
ozone transport region (OTR). The intended effect of this action is to
grant limited approval of Pennsylvania's NSR requirements.
EFFECTIVE DATE: This final rule is effective on January 8, 1998.
ADDRESSES: 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 the Pennsylvania Department of Environmental Protection,
Bureau of Air Quality, P.O. Box 8468, 400 Market Street, Harrisburg,
Pennsylvania 17105.
FOR FURTHER INFORMATION CONTACT: Marcia L. Spink (3AT00), (215) 566-
2104.
SUPPLEMENTARY INFORMATION:
Background
On May 2, 1997 (62 FR 24060), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR proposed
limited approval of Pennsylvania's NSR requirements for major new and
modified sources locating in areas designated nonattainment for a given
pollutant, and, in the case of VOC or NOX sources, if they
are being located in the OTR. The formal SIP revision submittal, which
was submitted by Pennsylvania on February 4, 1994, also included
associated new definitions and revisions to existing definitions,
emissions banking requirements, and procedures for an emissions
reductions credit (ERC) registry. The definitions are codified in
section 121.1 of Pennsylvania's air pollution control regulations. The
NSR, emissions banking and ERC registry provisions are codified in
Sections 127.201 through 127.217 of Pennsylvania's air pollution
control regulations, and replace the existing SIP provisions, which
were codified at Section 127.61 through 127.73. A description of
Pennsylvania's revised NSR and emissions banking and ERC registry
requirements and the rationale for EPA's proposed action are explained
in the NPR and will not be restated here. This action is being taken
pursuant to section 110 of the Clean Air Act.
Public Comments Received and EPA's Responses
During the public comment period following publication of the NPR,
EPA received three public comments from interested parties. A summary
of those comments and EPA responses is provided below.
Comment 1: The first commenter agrees with EPA's proposed
rulemaking action, particularly to the extent it supports the use of
``shutdown'' credits for new source offsets.
EPA's Response: None required.
Comment 2: The second commenter, Duquesne Light Company (Duquesne),
an electric utility that serves the greater Pittsburgh area, takes
issue with EPA's proposed limited approval action and contends that EPA
must take limited approval/limited disapproval action so that the
Pennsylvania Department of Environmental Protection (PADEP) may correct
deficiencies in its rule which render it more stringent than federal
requirements for NSR promulgated under the Clean Air Act. Duquesne
argues that because PADEP has not adopted the federal definition of
``actual emissions,'' its regulation is, de facto, more stringent with
regard to NSR-related baselines, particularly those associated with
creating emission reduction credits (ERCs) for use as emission offsets.
Duquesne asserts that Pennsylvania's de facto approach to defining
actual emissions cannot be characterized as an alternative wording that
is at least as stringent as EPA's definitions because PADEP's approach
is, in effect, more stringent than the EPA's definitions. Duquesne
comments that, under Pennsylvania law, PADEP is not allowed to make
such a ``more stringent'' demonstration for its NSR program. Duquesne
references section 4.2 of the Pennsylvania Air Pollution Control Act
(APCA) and argues that it mandates that PADEP's regulations ``* * *
shall be no more stringent than those required by the federal Clean Air
Act,'' unless the Pennsylvania Environmental Quality Board (PA EQB) has
made a determination that such regulations are ``reasonably necessary''
to exceed minimum Clean Air Act requirements. Duquesne contends that
the PA EQB has not made the required determination for PADEP's NSR
regulations.
EPA's Response: EPA disagrees with this commenter that because
Pennsylvania has not adopted the federal definition of ``actual
emissions,'' EPA must take limited approval/limited disapproval action
on the NSR SIP revision. The Clean Air Act requires that states adopt,
for inclusion into the SIP, permitting requirements for the
construction and modification of new major sources and major
modifications in nonattainment areas (and for major sources and major
modifications of VOC and NOX in the OTR). Federal rules
generally require that the SIP include legally enforceable procedures
to determine whether the construction and modification of any facility,
building, structure, or installation, or combination of these will
result in a violation of applicable portions of the control strategy;
or interfere with attainment or maintenance of a national standard in
the State in which the proposed source or modification is located or in
a neighboring State. Such SIP provisions must include the means by
which a State or local agency responsible for final decision making on
applications for approval to construct or modify will prevent such
construction and modification if it would result in either of the two
situations described above. EPA has determined that Pennsylvania's NSR-
related definitions and NSR-related regulations, as a whole, are
designed to be consistent with the tenets used in the design of the
relevant and required attainment plans and their associated control
strategies. EPA also disagrees that PADEP's NSR regulations must be
revised because they are, de facto, more stringent than federal NSR
requirements. EPA notes that the federal NSR regulations that apply to
this action do provide that a State's NSR program may be more stringent
than federal requirements. Consequently, a comment that a SIP revision
is more stringent that the federal minimum requirements generally is
not a basis for EPA to disapprove the revision.
EPA has determined pursuant to Section 110(a)(2)(E) of the Clean
Air Act and 40 CFR section 51, Appendix V, that Pennsylvania has
provided the necessary assurances that it has adequate authority to
implement the SIP revision and that it has followed all of the
procedural requirements of Pennsylvania laws and constitution in
adopting the submittal.1
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\1\ See, letter from Thomas J. Maslany, Director, Air, Radiation
and Toxics Division, USEPA, to Arthur A. Davis, Secretary,
Department of Environmental Resources, dated February 28, 1994.
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Section 4.2 of Pennsylvania's APCA (35 P.S. 4004.2) provides, in
pertinent part:
(b) Control measures or other requirements adopted under
subsection (a) of this section shall be no more stringent than those
required by the federal Clean Air Act unless
[[Page 64724]]
authorized or required under this act or specifically required by
the Clean Air Act. This requirement shall not apply if the
[Environmental Quality Board] determines that it is reasonably
necessary for a control measure or other requirement to exceed
minimum Clean Air Act requirements in order for the Commonwealth:
(1) to achieve and maintain the ambient air quality standards, *
* *
The issue of whether Pennsylvania's NSR regulations exceeded the
requirements of the Clean Air Act and therefore was prohibited by the
APCA was raised during Pennsylvania's public comment period. The PA
EQB, in its response to comments, stated that the final regulations
comply with the requirements of section 4.2 of the APCA. (See,
Pennsylvania Bulletin 443, 447, January 15, 1994)
Duquesne also asserts that the Pennsylvania EQB has not determined
in accordance with subsection (b) of section 4.2 of the APCA that the
NSR regulations at issue are ``reasonably necessary'' to ``exceed
minimum Clean Air Act requirements'' (footnote 1 on page four of
Duquesne's May 29, 1997 comment letter). Duquesne's assertion is
incorrect as shown by the express findings of the PA EQB contained in
the Board Order adopting the regulations. The PA EQB Order approving
the NSR regulations specifically provides:
The EQB finds that:
(4) These regulations are necessary for the Commonwealth to
achieve and maintain ambient air quality standards . . .
(Pennsylvania Bulletin 443,458 January 15, 1994 which was part of
PADEP's February 4, 1994 SIP revision submission).
Consequently, EPA believes that the PA EQB has made the requisite
finding for the adoption of rules and regulations more stringent than
those required by the Clean Air Act.
Comment 3: The third commenter, Eichleay Environmental, a Division
of Eichleay Engineers Inc. (Eichleay), neither specifically agrees nor
disagrees with EPA's proposed action. Rather Eichleay states that EPA's
limited approval of Pennsylvania's SIP revision suggests ``begrudging
agreement'' with Pennsylvania's ERC program. Eichleay states its belief
that ``Pennsylvania's program is, if anything, too restrictive.''
Eichleay provides several suggestions for preserving the value and
longevity of ERCs which would require changes to Pennsylvania's
regulations.
EPA's Response: EPA disagrees with the commenter that the proposed
limited approval action suggests EPA's ``begrudging agreement'' with
Pennsylvania's ERC program or any other provision of PADEP's NSR SIP
submittal. EPA's rationale for its proposed limited approval of the
Pennsylvania NSR SIP revision is articulated clearly in the notice of
proposed rulemaking. EPA's rationale is based entirely upon its review
of Pennsylvania's regulations and their conformance with federal NSR
requirements. As noted above, Eichleay's comments on EPA's notice of
proposed rulemaking included suggestions for changes to Pennsylvania's
NSR regulations. Under the Clean Air Act, EPA is limited to taking
action on SIP revision requests as submitted by the Governor or his
designee, and has no authority to unilaterally modify state regulations
via the SIP approval process.
Final Action
EPA is granting limited approval to Pennsylvania's revised NSR and
emissions banking and ERC registry provisions, as well as the
associated definitions of terms, submitted by PADEP on February 4, 1994
as a revision to the Pennsylvania SIP. The revised provisions
strengthen the SIP and meets the NSR requirements of the Clean Air Act.
Accordingly, this action revises 40 CFR section 52.2020 by adding
paragraph (c)(107) to reflect EPA's approval action. 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.
Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866 review.
B. Regulatory Flexibility Act
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 sections 110 and 301, 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,
EPA certifies that it does not have a significant impact on any small
entities affected. Moreover, due to the nature of the Federal-State
relationship 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).
C. Unfunded Mandates
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
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 requirements. Accordingly, no additional costs
to State, local, or tribal governments, or to the private sector,
result from this action.
D. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added 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 5
U.S.C. 804(2).
[[Page 64725]]
E. Petitions for Judicial 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 February 9, 1998. 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 granting limited approval of Pennsylvania's
NSR-related regulations including its provisions for emissions banking
and an ERC registry 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, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides.
Dated: November 7, 1997.
W. Michael McCabe,
Regional Administrator, Region III.
Chapter I, title 40 of the Code of Federal regulations 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 et seq.
Subpart NN--Pennsylvania
2. Section 52.2020 amended by adding paragraphs (c)(107) to read as
follows:
Sec. 52.2020 Identification of plan.
* * * * *
(c) * * *
(107) Revisions to the Pennsylvania Regulations, Chapter 127 by the
Pennsylvania Department of Environmental Protection
(i) Incorporation by reference.
(A) Letter of February 4, 1994 from the Pennsylvania Department of
Environmental Protection transmitting revisions to the New Source
Review Provisions.
(B) Revisions to the following Pennsylvania Department of
Environmental Quality Regulations, effective January 15, 1994:
(1) Addition of Chapter 127, Subchapter E, New Source Review,
Sections 127.201 through 127.217 inclusive, effective January 15, 1994.
(2) Deletion of Chapter 127, Subchapter C, Sections 127.61 through
127.73.
(ii) Additional materials consisting of the remainder of the
February 4, 1994 State submittal pertaining to Chapter 127, Subchapter
E.
[FR Doc. 97-32189 Filed 12-8-97; 8:45 am]
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