[Federal Register Volume 68, Number 123 (Thursday, June 26, 2003)]
[Rules and Regulations]
[Pages 37973-37976]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-16024]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA 138-4098a; FRL-7511-7]


Approval and Promulgation of Air Quality Implementation Plans; 
Federally Enforceable State Operating Permit Program; Allegheny County, 
Pennsylvania

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve a revision to the 
Allegheny County portion of the Commonwealth of Pennsylvania State 
Implementation Plan (SIP). The revision consists of Allegheny County's 
state operating permit program. EPA is approving this revision in 
accordance with the requirements of the Clean Air Act.

DATES: This rule is effective on August 25, 2003 without further 
notice, unless EPA receives adverse written comment by July 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: Comments may be submitted either by mail or electronically. 
Written comments should be mailed to Kristeen Gaffney, Acting Chief, 
Permits and Technical Assessment Branch, Mailcode 3AP11, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103. Electronic comments should be sent 
either to [email protected] or to http://www.regulations.gov, 
which is an alternative method for submitting electronic comments to 
EPA. To submit comments, please follow the detailed instructions 
described in Part V of the Supplementary Information section. 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; Allegheny 
County Health Department, Bureau of Environmental Quality, Division of 
Air Quality, 301 39th Street, Pittsburgh, Pennsylvania 15201.

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

SUPPLEMENTARY INFORMATION: 

I. Background

    On November 9, 1998 as amended on March 1, 2001, the Pennsylvania 
Department of Environmental Protection (PADEP), on behalf of the 
Allegheny County Health Department (ACHD), submitted a revision to the 
State Implementation Plan (SIP). The SIP revision consists of a state 
operating permitting program for sources of air pollution in Allegheny 
County. The SIP revision contains a regulation to implement a state 
operating permit program that provides a procedural and legal basis for 
the issuance of federally enforceable operating permits. Pennsylvania 
also requested approval of Allegheny County's state operating permit 
program pursuant to section 112(l) of the Clean Air Act.
    Federally enforceable state operating permits (FESOPs) may be used 
to establish emission standards and other source-specific regulatory 
requirements for stationary sources of air pollution. FESOPs are 
frequently employed by permitting authorities to accomplish one or more 
of the following objectives: To designate a source as a synthetic minor 
source with regard to applicability of Federal requirements and 
standards, such as new source review; to combine a source's 
requirements under multiple permits into one permit; to implement 
emissions trading requirements; to cap the emissions of a source 
contributing to a violation of any air quality standard; or, to 
establish a source-specific emission standard or other requirements 
necessary to implement the federal Clean Air Act or state air statutes 
and regulations.
    On December 6, 1999, EPA proposed approval of the permit program 
(64 FR 68066). The ACHD subsequently revised its regulations on August 
15, 2000, effective January 12, 2001. These revisions improve the ACHD 
permitting programs. EPA has withdrawn the previous proposal (64 FR 
68066) and is approving the FESOP program submitted on November 9, 
1998, as amended on March 1, 2001.

II. Evaluation of State Operating Permit Program Under Section 110 of 
the Act

    On June 28, 1989, EPA amended the definition of ``federally 
enforceable'' to clarify that terms and conditions contained in state-
issued operating permits are federally enforceable for purposes of 
limiting a source's maximum potential emission rates or potential-to-
emit (PTE). This is true provided that the state's operating permit 
program is approved into the SIP under section 110 of the Clean Air Act 
as meeting certain conditions, and provided that the permit conforms to 
the requirements of the approved program. The conditions for EPA 
approval discussed in the June 28, 1989 notice establish five criteria 
for approving a state operating permit program. (See, 54 FR 27274-
27286.) The following describes each of the criteria for approval of a 
state operating permit program for the issuance of federally 
enforceable operating permits for purposes of limiting a source's PTE 
and how the ACHD's SIP submittal satisfies those criteria.
    Criterion 1. The state operating permit program i.e., the 
regulations or other administrative framework describing how such 
permits are issued) must be submitted to and approved by EPA as a SIP 
revision. On November 9, 1998 as amended on March 1, 2001, the 
Commonwealth of Pennsylvania submitted an administratively and 
technically complete SIP revision request for approval of Allegheny 
County Health Department's operating permit program. The permit 
program, Article XXI, Parts B and C, provide the framework for permit 
issuance.
    Criterion 2. The SIP revision must impose a legal obligation that 
operating permit holders adhere to the terms and limitations of such 
permits (or subsequent revisions of the permit made in accordance with 
the approved operating permit program) and provide that permits which 
do not conform to

[[Page 37974]]

the operating permit program requirements and the requirements of EPA's 
underlying regulations may be deemed not ``federally enforceable'' by 
EPA. The permit program requires in Article XXI, section 2103.12.f.1 
and 2103.10.c.3, the legal obligation to comply with terms and 
conditions of any permit.
    Criterion 3. The state operating permit program must require that 
all emission limitations, controls, and other requirements imposed by 
such permits will be at least as stringent as any applicable 
limitations and requirements contained in the SIP, or enforceable under 
the SIP, and that the program may not issue permits that waive, or make 
less stringent, any limitations or requirements contained in or issued 
pursuant to the SIP, or that are otherwise ``federally enforceable'' 
e.g. standards established under sections 111 and 112 of the Clean Air 
Act). Article XXI, section 2103.12.a.C. states that the conditions of 
the permit must provide for and require compliance with all applicable 
requirements. Section 2103.12.g states that all permits shall include 
standard emissions limit requirements. Additionally, if an alternative 
emission limit is provided, section 2103.g.2 requires that it must be 
demonstrated to be equivalent to or more stringent than the applicable 
limit.
    Criterion 4. The limitations, controls, and requirements of the 
state operating permits must be permanent, quantifiable, and otherwise 
enforceable as a practical matter. Article XXI, section 2103.12.g 
states that the permit must include those operational requirements and 
limitations that assure compliance with all applicable requirements. 
This includes appropriate testing, monitoring, recordkeeping and 
reporting.
    Criterion 5. The permits are issued subject to public 
participation. This means that the state agrees, as part of its 
program, to provide EPA and the public with timely notice of the 
proposal and issuance of such permits, and to provide EPA, on a timely 
basis, with a copy of each proposed (or draft) and final permit 
intended to be federally enforceable. This process must also provide 
for an opportunity for public comment on the permit applications prior 
to the issuance of the final permit. Article XXI, subchapters B and C 
provide thorough procedures for public participation which meet the 
public participation criteria. Sections 2102.05.c, 2103.11.e, 
2102.04.h, 2103.11.h detail the public participation requirements.
    Allegheny County Health Department's operating permit program 
clearly satisfies the criteria for approval of a state program for the 
issuance of federally enforceable operating permits for purposes of 
limiting a source's PTE and is, therefore, approved as a SIP revision. 
The criteria discussed above relates to operating permit programs that 
are to approved as part of the SIP under section 110 of the Clean Air 
Act. In general, FESOP permit programs approved under a SIP relate only 
to those pollutants regulated under section 110, that is criteria 
pollutants. Pennsylvania is also seeking approval of ACHD's operating 
permit program under section 112 of the Clean Air Act for the purpose 
of limiting the PTE of hazardous air pollutants. The following is a 
discussion of EPA's criteria for approval of the permit program under 
section 112.

III. Evaluation of State Operating Permit Program Under Section 112 of 
the Act

    As part of this action, EPA is approving, pursuant to section 
112(l) of the Clean Air Act. Pennsylvania's request on behalf of the 
ACHD for authority to regulate hazardous air pollutants (HAPs) through 
the issuance of a federally enforceable state operating permit. 
Approval pursuant to section 112(l) of the Act would grant the ACHD 
authority to issue federally enforceable permits which limit PTE of 
HAPs. The 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 operating permit 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. Since 
the ACHD's operating permits program meets the five program approval 
criteria for both criteria and hazardous air pollutants, it may be used 
to limit the potential to emit of both criteria and hazardous air 
pollutants.
    In addition to meeting the criteria discussed above, the ACHD's 
permit program 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 
requirements; and (4) is otherwise likely to satisfy the objectives of 
the Act.
    The EPA is approving the ACHD's state operating permit program 
pursuant to section 112(l) of the Act because the programs meet 
applicable approval criteria in section 112(l)(5) of the Act. Regarding 
the statutory criteria of section 112(l)(5) of the Act, EPA believes 
the ACHD's permit program contains adequate authority to assure 
compliance with section 112 requirements since the program does not 
waive any section 112 requirement(s). Sources would still be required 
to meet section 112 requirements applicable to non-major sources. 
Regarding adequate resources, ACHD has included in its state operating 
permit program provisions for the collection of fees from sources 
obtaining permits. Furthermore, EPA believes that the state operating 
permit program provides 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 the operating 
permit program 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. The state operating permit 
program is consistent with the objectives of the section 112 program 
because its 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.

IV. Final Action

    EPA is approving a revision to the Allegheny County portion of the 
Commonwealth of Pennsylvania State Implementation Plan (SIP). The 
revision consists of Allegheny County's state operating permit program. 
EPA is approving this revision in accordance with the requirements of 
sections 110 and 112 of Clean Air Act.
    The 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 the SIP revision and section 112(l) approval 
if adverse comments are filed. This rule will be effective on August 
25, 2003 without further notice unless EPA receives adverse comment by 
July 28, 2003. If EPA receives adverse comment, EPA will publish a 
timely

[[Page 37975]]

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. Please note that if 
EPA receives adverse comment on an amendment, paragraph, or section of 
this rule and if that provision may be severed from the remainder of 
the rule, EPA may adopt as final those provisions of the rule that are 
not the subject of an adverse comment.
    You may submit comments either electronically or by mail. To ensure 
proper receipt by EPA, identify the appropriate rulemaking 
identification number PA138-4098 in the subject line on the first page 
of your comment. Please ensure that your comments are submitted within 
the specified comment period. Comments received after the close of the 
comment period will be marked ``late.'' EPA is not required to consider 
these late comments.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD ROM you submit, and in any cover letter accompanying 
the disk or CD ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket, and made 
available in EPA's electronic public docket. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment.
    i. E-mail. Comments may be sent by electronic mail (e-mail) to 
[Branch Chief's e-mail address], attention PA138-4098. EPA's e-mail 
system is not an ``anonymous access'' system. If you send an e-mail 
comment directly without going through Regulations.gov , EPA's e-mail 
system automatically captures your e-mail address. E-mail addresses 
that are automatically captured by EPA's e-mail system are included as 
part of the comment that is placed in the official public docket, and 
made available in EPA's electronic public docket.
    ii. Regulations.gov. Your use of Regulation.gov is an alternative 
method of submitting electronic comments to EPA. Go directly to http://www.regulations.gov, then select ``Environmental Protection Agency'' at 
the top of the page and use the ``go'' button. The list of current EPA 
actions available for comment will be listed. Please follow the online 
instructions for submitting comments. The system is an ``anonymous 
access'' system, which means EPA will not know your identity, e-mail 
address, or other contact information unless you provide it in the body 
of your comment.
    iii. Disk or CD ROM. You may submit comments on a disk or CD ROM 
that you mail to the mailing address identified in the ADDRESSES 
section of this document. These electronic submissions will be accepted 
in WordPerfect, Word or ASCII file format. Avoid the use of special 
characters and any form of encryption.
    2. By Mail. Written comments should be addressed to the EPA 
Regional office listed in the ADDRESSES section of this document.

V. 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

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``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 25, 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 the Allegheny County Health 
Department FESOP, 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: June 4, 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)(209) to read as 
follows:


Sec.  52.2020  Identification of plan.

* * * * *
    (c) * * *
    (209) Revisions to the Allegheny County, Pennsylvania Regulations 
for a federally enforceable state operating permit program, submitted 
on November 9, 1998 and March 1, 2001, by the Pennsylvania Department 
of Environmental Protection on behalf of the Allegheny County Health 
Department:
    (i) Incorporation by reference.
    (A) Letters of November 9, 1998 and March 1, 2001 from the 
Pennsylvania Department of Environmental Protection, on behalf of the 
Allegheny County Health Department, transmitting a federally 
enforceable state operating permit program.
    (B) Addition of the following Allegheny County Health Department 
Rules and Regulations, Article XXI Air Pollution Control:
    (1) Regulation 2101.05, Regulation 2103.12--effective March 31, 
1998.
    (2) Regulation 2103.01, Regulation 2103.11, Regulation 2103.13, 
Regulation 2103.15--effective October 20, 1995.
    (3) Regulation 2103.14--effective January 12, 2001.
    (ii) Additional Material--Remainder of the State submittal(s) 
pertaining to the revisions listed in paragraph (c)(209)(i) of this 
section.
* * * * *
[FR Doc. 03-16024 Filed 6-25-03; 8:45 am]
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