[Federal Register Volume 68, Number 60 (Friday, March 28, 2003)]
[Rules and Regulations]
[Pages 15059-15061]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-7510]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA202-4400a; FRL-7474-2]


Approval and Promulgation of Air Quality Implementation Plans; 
Philadelphia County, PA; Construction, Modification and Operation 
Permit Programs

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 
Philadelphia County portion of the Pennsylvania State Implementation 
Plan (SIP). The revision approves Philadelphia County's regulations 
governing the construction of new and modified sources and the 
operation of existing sources of air pollution in the County. EPA is 
approving this SIP revision in accordance with the requirements of the 
Clean Air Act.

DATES: This rule is effective on May 27, 2003 without further notice, 
unless EPA receives adverse written comment by April 28, 2003. 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 should be addressed to Makeba Morris, 
Chief, Permitting and Technical Assessment Branch, Mailcode 3AP11, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103. Copies of the documents relevant to 
this action are available for public inspection during normal business 
hours at the Air Protection Division, U.S. Environmental Protection 
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103; 
the Air and Radiation Docket and Information Center, U.S. Environmental 
Protection Agency, 1301 Constitution Avenue, NW., Room B108, 
Washington, DC 20460; Pennsylvania Department of Environmental 
Protection, Bureau of Air Quality, P.O. Box 8468, 400 Market Street, 
Harrisburg, Pennsylvania 17105; Department of Public Health, Air 
Management Services, 321 University Avenue, Philadelphia, Pennsylvania 
19104.

FOR FURTHER INFORMATION CONTACT: Paul Arnold, (215) 814-2194, or by e-
mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On May 13, 1999, the Commonwealth of Pennsylvania submitted on 
behalf of Philadelphia County Air Management Services (AMS) a formal 
revision to its State Implementation Plan (SIP). The SIP revision 
consists of Philadelphia Air Management Regulation XIII--``Pertaining 
to the Construction, Modification, Reactivation, and Operation of 
Sources.''

II. Summary of SIP Revision

    Regulation XIII enables Philadelphia County AMS to administer the 
permit program requirements contained in the Commonwealth of 
Pennsylvania's 25 Pa. Code Chapter 127, ``Construction, Modification, 
Reactivation, and Operation of Sources.'' Substantively, Regulation 
XIII incorporates by reference 25 Pa. Code Chapter 127 in its entirety. 
Philadelphia County made minor administrative revisions to 25 Pa. Code 
Chapter 127 to reflect the appropriate officials and administrative 
procedures relevant to AMS.
    Regulation XIII, through incorporation of the various subchapters 
of 25 Pa. Code Chapter 127, adopts provisions that pertain to a number 
of distinct permit programs that satisfy a variety of Clean Air Act 
requirements. Each of the permit program elements contained in 25 Pa. 
Code Chapter 127 have been previously submitted to EPA for review and 
approval as part of the SIP for the Commonwealth of Pennsylvania. Since 
Philadelphia County did not make any substantive changes to 25 Pa. Code 
Chapter 127 when it incorporated its provisions into its Regulation 
XIII, the review and analysis performed by EPA when it previously acted 
on 25 Pa. Code Chapter 127 remains relevant and appropriate. The 
following table indicates the relevant subchapters of 25 Pa. Code 
Chapter 127 that have been previously approved by EPA as part of the 
Pennsylvania SIP.

[[Page 15060]]



           Previous EPA SIP Action on 25 Pa. Code Chapter 127
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   25 Pa. Code Chapter 127 Subchapter              Approval date
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A. General provisions pertaining to       July 30, 1996.
 permit program purpose and operational   61 FR 39597.
 flexibility.
B. Plan approval requirements related to  July 30, 1996.
 construction or modification of minor    61 FR 39597.
 sources.
F. Operating permit requirements related  July 30, 1996.
 to the ongoing operation of minor and    61 FR 39597.
 major sources.
H. General plan approval and operating    July 30, 1996.
 permit provisions pertaining to permits  61 FR 39594.
 for groups or categories of sources.
I. Plan approval and operating permit     July 30, 1996.
 fee provisions.                          61 FR 39594.
J. General conformity provisions of the   Sept. 29, 1997.
 Clean Air Act.                           62 FR 50870.
------------------------------------------------------------------------

    EPA directs interested parties to review the rulemaking actions 
detailed above for further analysis in support of this action to 
approve Regulation XIII as part of Philadelphia County's portion of the 
Pennsylvania SIP.
    Regulation XIII also contains provisions that enable Philadelphia 
County to implement and enforce the federal prevention of significant 
deterioration (PSD) of air quality permit program. The PSD program 
covers any new construction or any major modification of a major 
stationary air emission source in an area which has air quality better 
than the national ambient air quality standards. The program requires 
the issuance of permits prior to construction or modification of 
certain sources. Regulation XIII adopts the requirements of the Federal 
PSD program at 40 CFR 52.21 by reference in its entirety. Because 
Regulation XIII does not reference a specific edition of 40 CFR part 
52, all future changes to part 52 with regard to the federal PSD 
program are automatically incorporated by reference into Regulation 
XIII.
    The Federal PSD program promulgated at 40 CFR part 52 intrinsically 
meets the minimum requirements of 40 CFR part 51 pertaining to the 
adoption and implementation of PSD permit programs by state and local 
air pollution control agencies. Therefore, Regulation XIII, by 
incorporating the Federal PSD program, meets the minimum requirements 
of 40 CFR part 51 with regard to PSD programs.
    Since 1983, Philadelphia County AMS has been delegated the 
authority to implement and enforce the provisions of 40 CFR 52.21 on 
behalf of EPA. (See 48 FR 31638, July 11, 1983.) Incorporation of the 
Federal PSD regulations into Regulation XIII and approval into the 
Philadelphia County portion of the Pennsylvania SIP effectively 
eliminates the need for the existing PSD delegation agreement. Upon the 
effective date of this action, the existing delegation of authority 
agreement between EPA and Philadelphia County regarding implementation 
and enforcement of the Federal PSD program will be terminated.
    In addition, while EPA is approving Philadelphia County's PSD SIP, 
EPA recognizes that it has a responsibility to insure that all States 
properly implement their preconstruction permitting programs. EPA's 
approval of Philadelphia County's PSD program does not divest the 
Agency of the duty to continue appropriate oversight to insure that PSD 
determinations made by Philadelphia County are consistent with the 
requirements of the Clean Air Act, EPA regulations, and the SIP. EPA's 
authority to oversee PSD program implementation is set forth in 
sections 113, 167, and 505(b) of the Act. For example, section 167 
provides that EPA shall issue administrative orders, initiate civil 
actions, or take whatever other enforcement action may be necessary to 
prevent construction of a major stationary source that does not 
``conform to the requirements of'' the PSD program. Similarly, section 
113(a)(5) provides for administrative orders and civil actions whenever 
EPA finds that a State ``is not acting in compliance with'' any 
requirement or prohibition of the Act regarding construction of new or 
modified sources. Likewise, section 113(a)(1) provides for a range of 
enforcement remedies whenever EPA finds that a person is in violation 
of an applicable implementation plan.
    It should be noted that EPA is not taking action at this time on 
certain discrete portions of Regulation XIII. Regulation XIII contains 
provisions that pertain to the County's new source review (NSR) 
permitting program for the construction or modification of major 
sources in nonattainment areas. Similarly, Regulation XIII contains 
provisions that reflect the requirements of the County's operating 
permit program developed to satisfy title V of the Clean Air Act. The 
NSR and title V provisions of Regulation XIII may be considered 
separate and/or additional permitting requirements relative to the 
other permitting requirements contained in the Regulation XIII. The 
EPA's inaction on these provisions at this time does not adversely 
impact the implementation of the portions of Regulation XIII that are 
being approved as part of the Philadelphia County portion of the 
Pennsylvania SIP pursuant to this action. The EPA intends to take 
separate action on the NSR and title V operating permit program 
portions of Regulation XIII in the future.

III. Final Action

    EPA is approving Philadelphia Air Management Regulation XIII of the 
AMS regulations pertaining to a number of the County's construction and 
operating permit programs. EPA is publishing this rule without prior 
proposal because the Agency views this as a noncontroversial amendment 
and anticipates no adverse comment because this rulemaking incorporates 
the requirements contained in Commonwealth of Pennsylvania's 25 Pa. 
Code Chapter 127, which was previously reviewed and approved by EPA. 
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 the SIP revision if adverse comments are filed. This rule 
will be effective on May 27, 2003 without further notice unless EPA 
receives adverse comment by April 28, 2003. 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

[[Page 15061]]

interested in commenting must do so at this time.

IV. Statutory and Executive Order Reviews

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. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). 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 Reform Act of 1995 (Pub. L. 104-4). This rule also does not 
have tribal implications because it will not have a substantial direct 
effect on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes, 
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). 
This action also does not have Federalism implications because it does 
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). 
This action 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 ``Protection of Children 
from Environmental Health Risks and Safety Risks'' (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. This rule does not 
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 May 27, 2003. 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 approving Philadelphia County's Air 
Management Regulation XIII 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, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: March 20, 2003.
Donald S. Welsh,
Regional Administrator, Region III.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

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

Subpart NN--Pennsylvania

0
2. Section 52.2020 is amended by adding paragraph (c)(203) to read as 
follows:


Sec.  52.2020  Identification of plan.

* * * * *
    (c) * * *
    (203) Revisions to Philadelphia Air Management Regulation XIII--
``Pertaining to the Construction, Modification, Reactivation, and 
Operation of Sources'' submitted on May 13, 1999 by the Pennsylvania 
Department of Environmental Protection on behalf of Philadelphia County 
Air Management Services:
    (i) Incorporation by reference.
    (A) Letter of May 13, 1999 from the Pennsylvania Department of 
Environmental Protection on behalf of Philadelphia County Air 
Management Services transmitting Regulation XIII governing the 
construction of new and modified sources and operation of existing 
sources of air pollution in the County.
    (B) Philadelphia Air Management Regulation XIII--``Pertaining to 
the Construction, Modification, Reactivation, and Operation of 
Sources'', except as it pertains to the new source review permit 
program and the title V operating permit program, effective October 30, 
1995.
    (ii) Additional Material.--Remainder of the State submittal 
pertaining to the revisions listed in paragraph (c)(203)(i) of this 
section.

[FR Doc. 03-7510 Filed 3-27-03; 8:45 am]
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