[Federal Register Volume 65, Number 109 (Tuesday, June 6, 2000)]
[Rules and Regulations]
[Pages 35840-35842]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-13769]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA 153-4100a; FRL-6702-3]


Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; Nitrogen Oxides Allowance Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve revisions to the 
Commonwealth of Pennsylvania State Implementation Plan (SIP). The 
revision consists of amendments to Pennsylvania's Nitrogen Oxides 
(NOX) Allowance Requirements. The revisions implement the 
Ozone Transport Commission's (OTC) September 27, 1994 Memorandum of 
Understanding (MOU) in the Commonwealth of Pennsylvania. In accordance 
with the MOU, the revisions implement the Pennsylvania portion of a 
regional NOX cap and trade program that significantly 
reduces NOX emissions generated within the Ozone Transport 
Region (OTR). EPA is approving these revisions in accordance with the 
requirements of the Clean Air Act.

DATES: This rule is effective on August 7, 2000 without further notice, 
unless EPA receives adverse written comment by July 6, 2000. If EPA 
receives such comments, it will publish a timely withdrawal of the 
direct final rule in the Federal Register and inform the public that 
the rule will not take effect.

ADDRESSES: Written comments may be mailed to David L. Arnold, Chief, 
Ozone & Mobile Sources Branch, Mailcode 3AP21, U.S. EPA, Region III, 
1650 Arch Street, Philadelphia, PA 19103. Copies of the documents 
relevant to this action are available for public inspection during 
normal business hours at the Air Protection Division, EPA, Region III, 
1650 Arch Street, Philadelphia, PA 19103 and Pennsylvania Department of 
Environmental Protection, Bureau of Air Quality, P.O. Box 8468, 400 
Market Street, Harrisburg, PA 17105.

FOR FURTHER INFORMATION CONTACT: Cristina Fernandez, (215) 814-2178, or 
by e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On December 19, 1997, the Pennsylvania Department of Environmental 
Protection (DEP) submitted a revision to its SIP. The revision consists 
of amendments to Title 25 of the Pennsylvania Code including Chapter 
121--Definitions and Chapter 123--NOX Allowance 
Requirements. On December 27, 1999, DEP submitted a subsequent revision 
to its SIP amending Chapter 121--Definitions and Chapter 123--
NOX Allowance Requirements. This regulation is part of a 
regional NOX reduction program based upon an MOU drawn 
between the member states of the OTC. The OTC adopted a MOU on 
September 27, 1994, committing the signatory states to the development 
and implemenation of a two phase region-wide reduction in 
NOX emissions by 1999 and 2003, respectively. As reasonably 
available control technology (RACT) to reduce NOX emissions 
was required to be implemented by May of 1995, the MOU refers to the 
reduction in NOX emissions to be achieved by 1999 as Phase 
II; and the reduction in NOX emissions to be achieved by 
2003 as Phase III. The OTC member states include Maine, New Hampshire, 
Vermont, Massachusetts, Connecticut, Rhode Island, New York, New 
Jersey, Pennsylvania, Maryland, Delaware, the northern counties of 
Virginia, and the District of Columbia. All of the OTC members, with 
the exception of the Commonwealth of Virginia, signed the September 27, 
1994 MOU. The OTC MOU requires a reduction in ozone season 
NOX emissions from utility and large industrial combustion 
facilities within the OTR in order to further the effort to achieve the 
health-based National Ambient Air Quality Standard (NAAQS) for ozone. 
In the MOU, the OTC states agreed to propose regulations for the 
control of NOX emissions in accordance with the following 
guidelines:
    1. The level of NOX required would be established from a 
1990 baseline emissions level.

[[Page 35841]]

    2. The reduction would vary by location, or zone, and would be 
implemented in two phases utilizing a region wide trading program.
    3. The reduction would be determined based on the less stringent of 
each of the following:
    a. By May 1, 1999, the affected facilities in the inner zone shall 
reduce their rate of NOX emissions by 65% from baseline, or 
emit NOX at a rate no greater than 0.20 pounds per million 
Btu. (This is a Phase II requirement.)
    b. By May 1, 1999, the affected facilities in the outer zone shall 
reduce their rate of NOX emissions by 55% from baseline, or 
shall emit NOX at a rate no greater than 0.20 pounds per 
million Btu. (This is a Phase II requirement.)
    c. By May 1, 2003, the affected facilities in the inner and outer 
zones shall reduce their rate of NOX emissions by 75% from 
baseline, or shall emit NOX at a rate no greater than 0.15 
pounds per million Btu. (This is a Phase III requirement.)
    d. By May 1, 2003, the affected facilities in the Northern zone 
shall reduce their rate of NOX emissions by 55% from 
baseline, or shall emit NOX at a rate no greater than 0.20 
pounds per million Btu. (This is a Phase III requirement.)
    A Task Force of representatives from the OTC states, organized 
through the Northeast States for Coordinated Air Use Management 
(NESCAUM) and the Mid-Atlantic Regional Air Management Association 
(MARAMA), was charged with the task of developing a Model Rule that 
would implement the program defined by the OTC MOU. During 1995 and 
1996, the NESCAUM/ MARAMA NOX Budget Task Force worked with 
EPA and developed a model rule as a template for OTC states to adopt 
their own rules to implement the OTC MOU. The model was issued May 1, 
1996. The model rule was developed by and for the OTC states to 
implement the Phase II reductions called for in the MOU to be achieved 
by May 1, 1999. The model rule does not include the implementation of 
Phase III.

Summary of SIP Revision

    Pennsylvania's Chapter 121--Definitions and Chapter 123--Nitrogen 
Oxides Allowance Requirements are based upon and are consistent with 
the ``NESCAUM/MARAMA NOX Budget Rule'' issued in May 1, 
1996. The model rule was developed by the states in the OTR using the 
EPA's economic incentive rules (67 FR 16690) which were published on 
April 7, 1994, as the general regulatory framework.
    On December 19, 1997, the Pennsylvania DEP submitted a revision to 
its SIP. The revision consists of amendments to Title 25 of the 
Pennsylvania Code including Chapter 121--Definitions and Chapter 123--
NOX Allowance Requirements. Chapter 121--Definitions 
includes the terms used in Chapter 123--NOX Allowances 
Requirements. Chapter 123--NOX Allowances Requirements 
consists of twenty sections: (1) Purpose; (2) Source NOX 
allowance requirements and NOX allowance control period; (3) 
General NOX allowance provisions; (4) Source authorized 
account representative requirements; (5) Allowance Tracking System 
(NATS) provisions; (6) NOX allowance transfer protocol; (7) 
NOX allowance transfer procedures; (8) Source emissions 
monitoring requirements; (9) Source emissions reporting requirements; 
(10) Source compliance requirements; (11) Failure to meet source 
compliance requirements; (12) Source operating permit provision 
requirements; (13) source record keeping requirements; (14) General 
NOX allocation provisions; (15) Initial NOX 
allowance NOX allocations; (16) Source opt-in provisions; 
(17) New NOX affected source provisions; (18) Emission 
reduction credit provisions; (19) Bonus NOX allowance 
awards; (20) Audit. Appendix A to Chapter 123 is where the budgeted 
sources and their NOX allowance allocations are identified. 
On December 27, 1999, DEP submitted amendments to its December 19, 1997 
SIP revision request. The amendments revise Chapter 121--Definitions 
and Chapter 123--NOX Allowance Requirements. In Chapter 
121--Definitions, the term ``NOX affected source'' was 
modified to clarify that only individual emission units of 15 MWe or 
greater are included in the definition. In addition, the definition of 
``NOX affected source'' was further clarified to exclude 
emergency electrical generating units used to power safety equipment at 
nuclear power plants. In Chapter 123--NOX Allowance 
Requirements, Section 123.115--Initial NOX Allowance 
NOX Allocations was modified to remove the Washington Power 
Company allocation. Appendix A to Chapter 123 was renamed to Appendix 
E, and was modified in four ways. First, the NOX affected 
sources identified through the process described in Section 123.117--
New NOX Affected Source Provisions were added to Appendix E. 
Second, the accounting error that resulted in over-allocating the 1999 
budget was corrected with a pro rata reduction in all NOX 
affected sources emissions. Third, several sources mistakenly included 
in the previous Appendix A were deleted. Finally, the last column of 
the previous Appendix A was deleted and the ``Baseline NOX 
lb/MMBtu'' column was renamed to add the term ``Bonus Allowances''.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comment. However, in the ``Proposed Rules'' section of today's 
Federal Register, EPA is publishing a separate document that will serve 
as the proposal to approve Pennsylvania's NOX Allowance 
Requirements if adverse comments are filed. This rule will be effective 
on August 7, 2000 without further notice unless EPA receives adverse 
comment by July 6, 2000. If EPA receives adverse comment, EPA will 
publish a timely withdrawal in the Federal Register informing the 
public that the rule will not take effect. EPA will address all public 
comments in a subsequent final rule based on the proposed rule. EPA 
will not institute a second comment period on this action. Any parties 
interested in commenting must do so at this time.

II. Final Action

    EPA is approving revisions to the Pennsylvania SIP consisting of 
Chapter 121--Definitions and Chapter 123--NOX Allowance 
Requirements, submitted on December 19, 1997 and amended on December 
27, 1999. These revisions implement Pennsylvania's portion of Phase II 
of the OTC's MOU to reduce nitrogen oxides.

III. Administrative Requirements

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. This action 
merely approves state law as meeting federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates

[[Page 35842]]

Reform Act of 1995 (Pub. L. 104-4). For the same reason, this rule also 
does not significantly or uniquely affect the communities of tribal 
governments, as specified by Executive Order 13084 (63 FR 27655, May 
10, 1998). This rule 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, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999), because it merely approves a state rule 
implementing a federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 (62 FR 
19885, April 23, 1997), because it is not economically significant. In 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the Clean Air Act. In this 
context, in the absence of a prior existing requirement for the State 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this rule, EPA has taken the necessary steps to eliminate drafting 
errors and ambiguity, minimize potential litigation, and provide a 
clear legal standard for affected conduct. EPA has complied with 
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the 
taking implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Taking'' issued under the executive order. 
This rule does noYt impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).

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 rule 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. This rule 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 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 August 7, 2000. 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 to approve Pennsylvania's NOX 
Allowance Requirements 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, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements.

    Dated: April 24, 2000.
Bradley M. Campbell,
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 et seq.

Subpart NN--Pennsylvania

    2. Section 52.2020 is amended by adding paragraph (c)(145) to read 
as follows:


Sec. 52.2020  Identification of plan.

* * * * *
    (c) * * *
    (145) Revisions to the Pennsylvania State Implementation Plan 
adopting the Nitrogen Oxides Allowance Requirements submitted on 
December 19, 1997 and December 27, 1999 by the Secretary of the 
Pennsylvania Department of Environmental Protection:
    (i) Incorporation by reference.
    (A) Letter of December 19, 1997 from the Secretary of the 
Pennsylvania Department of the Environmental Protection transmitting 
the Nitrogen Oxides Allowance Requirements.
    (B) Letter of December 27, 1999 from the Secretary of the 
Pennsylvania Department of the Environmental Protection transmitting 
the Nitrogen Oxides Allowance Requirements.
    (C) Revisions to 25 PA Code, Chapters 121 and 123 pertaining to 
Nitrogen Oxides Allowance Requirements, effective November 1, 1997.
    (1) Revisions to section 121.1--definitions of: account, account 
number, acquiring account, compliance account, electric generating 
facility, fossil fuel, fossil fuel fired, general account, heat input, 
indirect heat exchange combustion unit, maximum heat input capacity, 
NATS-NOX allowance tracking system, NETS-NOX 
emissions tracking system, NOX allocation, NOX 
allowance, NOX allowance CEMS-NOX allowance 
continuous emission monitoring system, NOX allowance control 
period, NOX allowance curtailment, NOX allowance 
deduction, NOX allowance transfer, NOX allowance 
transfer deadline, NOX budget, NOX budget 
administrator, OTC MOU-ozone transport commission memorandum of 
understanding, replacement source.
    (2) Addition of sections 123.101 through 123.120, except for 
section 123.115.
    (D) Revisions to 25 PA Code, Chapters 121 and 123 pertaining to 
Nitrogen Oxides Allowance Requirements, effective March 11, 2000.
    (1) Revisions to section 121.1--definition of NOX 
affected source.
    (2) Addition of section 123.115 and Appendix E.
    (ii) Additional material.
    (A) Nitrogen Oxide (NOX) Memorandum of Understanding 
Implementation Plan of December 9, 1997.
    (B) Letter of March 31, 2000 from the Director of the Pennsylvania 
Department of the Environmental Protection amending the Chapter 123 
NOX Allowance Program.

[FR Doc. 00-13769 Filed 6-5-00; 8:45 am]
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