[Federal Register Volume 69, Number 167 (Monday, August 30, 2004)]
[Rules and Regulations]
[Pages 52831-52834]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-19715]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA 138-4230; FRL-7807-3]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a revision to the Commonwealth of 
Pennsylvania's State Implementation Plan (SIP). This SIP revision was 
submitted by the Pennsylvania Department of the Environment (DEP) on 
behalf of the Allegheny County Health Department (ACHD). The SIP 
revision consists of the Federally enforceable state operating permit 
(FESOP) program adopted by the ACHD. The intent of this revision is to 
establish a SIP-approved FESOP program to be implemented by the ACHD 
for sources located in Allegheny County, Pennsylvania. EPA is approving 
this revision in accordance with the requirements of the Clean Air Act 
(CAA).

EFFECTIVE DATE: This final rule is effective on September 29, 2004.

ADDRESSES: 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; 
the Pennsylvania Department of Environmental Protection, Bureau of Air 
Quality, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 
17105; and the Allegheny County Health Department, Bureau of 
Environmental Quality, Division of Air Quality, 301 39th Street, 
Pittsburgh, Pennsylvania 15201.

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

SUPPLEMENTARY INFORMATION:

I. Background

    On June 26, 2003 (68 FR 37973), EPA published a notice of direct 
final rulemaking (DFR) approving a revision to the Allegheny County 
(the County) portion of the Commonwealth of Pennsylvania's SIP. The 
formal SIP revision was submitted by the Pennsylvania DEP on behalf of 
the ACHD on November 9, 1998, as amended on March 1, 2001. The revision 
consists of the County's regulation to implement a program which 
provides for the procedural and legal issuance of federally enforceable 
state operating permits (FESOPs) for sources of air pollution located 
in Allegheny County.
    On June 26, 2003 (68 FR 37993), EPA also published a companion 
notice of proposed rulemaking (NPR) approving this SIP revision. It was 
stated in the June 26, 2003 DFR and NPR notices that this SIP revision 
would be effective on August 25, 2003 without further notice unless EPA 
received adverse written comments by July 28, 2003. If adverse comments 
were submitted, the final rule approving the SIP revision would be 
withdrawn. On July 28, 2003, adverse comments were submitted. On 
September 26, 2003 (68 FR 55469), EPA withdrew the final rule approving 
ACHD's FESOP program.

II. Pennsylvania's SIP Revision for Allegheny County

    EPA has evaluated the ACHD's operating permit program and 
determined that it satisfies the five criteria for approval of a FESOP 
program for purposes of limiting a source's potential to emit (PTE). 
See FR 27274, 27281-27284, June 28, 1989. EPA is therefore approving 
the Pennsylvania DEP's request that the ACHD's regulation be made part 
of the Pennsylvania SIP under section 110 of the CAA, 42 U.S.C. 7410. 
The Pennsylvania DEP also requested approval of ACHD's program pursuant 
to section 112(l) of the CAA, 42 U.S.C. 7412(l). EPA determined that 
the County's program is consistent with the objectives and requirements 
of section 112, 42 U.S.C. 7412, which governs the regulation of 
hazardous air pollutants (HAP). It enables sources to apply for 
federally enforceable limits on their PTE to avoid major source 
classification under section 112. The details of EPA's evaluation of 
the ACHD's regulation are provided in the notice published on June 26, 
2003 (68 FR 37973) and shall not be restated here.
    Today's action does not affect the ACHD's separate title V 
operating permit program codified in Allegheny County Health 
Department, Rules and Regulations, Article XXI, Part C, which was 
developed by the ACHD and approved by EPA under title V of the CAA 
(title V), 42 U.S.C. 7661-7661f, and EPA's implementing regulations in 
40 CFR part 70 (part 70). See 66 FR 55112, Nov. 1, 2001. The title V 
operating permit program applies to major stationary sources of air 
pollution and certain other sources. By contrast, a FESOP program may 
be and often is used to establish emission standards and other source-
specific regulatory requirements for stationary sources of air 
pollution that enable them to remain ``synthetic minor'' sources that 
are not subject to major source requirements, including title V 
permitting requirements. Thus, the ACHD's FESOP program generally will 
apply to sources that are not covered by the ACHD's title V program.\1\
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    \1\ In the event that a source covered by a FESOP becomes a 
major source subject to title V permitting requirements, the 
emission limits and other requirements set forth in the FESOP would 
be incorporated into the title V operating permit as required by 
title V, part 70 and the ACHD's corresponding authorities.
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III. Public Comments and EPA Responses

    On July 28, 2003, adverse comments were submitted to EPA regarding 
its proposed approval of ACHD's FESOP

[[Page 52832]]

program. A summary of those comments and EPA's responses follows.
    Comments: The commentor states that it is fully aware of the many 
positive attributes of the Allegheny County Heath Department's Air 
Enforcement and Compliance program, and that as a general rule supports 
delegating to the County enforcement authority for air quality 
regulatory implementation. The commentor, however, states its 
opposition to full approval of the County's FESOP program at this time 
is based on concern over the ability of the ACHD to carry out the 
regulatory tasks set forth therein. The commentor first maintains that 
the ACHD's FESOP program must, in addition to satisfying EPA's five 
criteria for approval of a FESOP program (see 54 FR 27274, 27281-
27284), meet the minimum requirements for approvable State or local 
title V program submissions listed in 40 CFR 70.4(b). In particular, 
the commentor cites the requirement that a part 70 program submission 
include ``* * * a statement that adequate personnel and funding have 
been made available to develop, administer, and enforce the program'' 
[40 CFR 70.4(b)(8)]. The commentor states that the requirements of 
Sec.  70.4(b) are binding on ``partial programs'' such as ACHD's by 
virtue of Sec.  70.4(c)(2) as many of the sources which will obtain 
FESOP's under the ACHD's program will do so for the express purpose of 
avoiding Title V applicability. The commentor therefore believes that a 
state or local FESOP program approval determination must also take into 
account the elements of Sec.  70.4.
    The commentor also expresses concern as to whether the ACHD 
satisfies the requirement for approval of a FESOP program which states 
that all limitations, controls and requirements imposed in a permit 
must be permanent, quantifiable and enforceable as a practical matter. 
The commentor asserts that if an enforcement and compliance program is 
not performing at a satisfactory level, then it is not accurate to 
represent that permits are enforceable ``as a practical matter.'' As a 
basis for this comment, the commentor cites to a report entitled 
``Review of Allegheny County Health Department's Air Enforcement & 
Compliance Program'' issued by EPA Region III's Office of Air 
Enforcement and Permits Review in June, 2003. The commentor discusses 
the report's findings with respect to: the adequacy of the legal 
resources available to the ACHD to ensure adequate enforcement; the 
apparent lack of enforcement activity by the ACHD; the ACHD's failure 
to fully comply with EPA reporting requirements, which the commentor 
asserts is critical to EPA's and the public's ability to oversee the 
ACHD's enforcement activities; the ACHD's organizational structure; and 
the lack of the ACHD's follow-up on stack tests. The commentor also 
incorporates by reference the additional problem areas identified by 
EPA in the report.
    In addition, the commentor raises two comments concerning EPA's 
approval of the Pennsylvania DEP's request that EPA grant the ACHD 
authority pursuant to section 112(l) of the CAA to limit sources' 
potential to emit HAP through the issuance of FESOPs. The commentor 
asserts that two of the section 112(l) requirements for EPA approval of 
a FESOP program for HAP purposes ``provide a challenge'' in the case of 
the ACHD's program. First, the commentor asserts that EPA's conclusion 
that the ACHD has adequate resources due to permit fees ``seems 
questionable in light of EPA's own final report on ACHD's enforcement 
and compliance program.'' Second, the commentor asserts that 
shortcomings in the ACHD's program, such as the ``dearth of 
enforcement, failure to identify violators, and failure to supply 
[Pennsylvania] DEP and EPA with all necessary records from which to 
discern facility compliance * * * run contrary to'' section 112(l)(5)'s 
requirement that a program is ``otherwise likely to satisfy the 
objectives of the Act.''
    Rather than proceed with full approval, the commentor comments that 
EPA could grant a conditional approval of the County's FESOP program. 
The commentor urges EPA to impose conditions upon ACHD, that would 
provide for a twelve-month or longer period, as deemed appropriate by 
EPA, within which to demonstrate substantial improvement across a range 
of areas in ACHD's air enforcement and compliance program.
    EPA's Response: EPA disagrees with the commentor's first assertion 
that ``* * * a statement that adequate personnel and funding have been 
made available to develop, administer, and enforce the program'' as 
required by 40 CFR 70.4(b)(8) is required in order for EPA to approve 
the Commonwealth of Pennsylvania's request that ACHD's FESOP regulation 
be made part of the Pennsylvania SIP.--See Wall v. EPA, no. 00-4010, 
slip op. at 21-24 (6th Cir. September 11, 2001). Although Clean Air Act 
sections 110(a)(2)(E) and 110(a)(2)(C) do contain these provisions, 
section 110(a)(2)(H) is the statutory provision which governs 
requirements for individual plan revisions which States may be required 
to submit from time to time. There are no cross-references in section 
7410(a)(2)(H) to either 7410(a)(2)(E) or 7410(a)(2)(C). Therefore, EPA 
concludes that Congress did not intend to require States to submit an 
analysis of adequate funding and enforcement with each subsequent and 
individual SIP revision submitted under the authority of section 
110(a)(2)(H). Once EPA approves a State's SIP as meeting section 
110(a)(2), EPA is not required to reevaluate that SIP for each new 
revision to the plan submitted to meet requirements in other sections 
of the Act. The Commonwealth of Pennsylvania had previously received 
approval of its 110(a)(2) SIPs. See discussion in the Cincinnati 
redesignation of this issue (65 FR 37879, 37881-37882) (June 19, 2000). 
The sixth circuit has upheld EPA's interpretation in Wall v. EPA, 
supra, at 20-21. Therefore, EPA concludes that Congress did not intend 
to require States to submit an analysis of adequate funding and 
enforcement with each subsequent and individual SIP revision submitted 
under the authority of section 110(a)(2)(H).
    EPA further disagrees that the report entitled ``Review of 
Allegheny County Health Department's Air Enforcement & Compliance 
Program'' is grounds to determine that the ACHD's FESOP regulation 
fails to satisfy the criteria for approval of a FESOP program as a 
revision to the Pennsylvania SIP. In its previous notices, 68 FR 37973 
and 68 FR 37993, EPA established that ACHD's regulation satisfies all 
five criteria used to determine that a regulation has the necessary 
components to provide the procedural and legal basis for the issuance 
of federally enforceable state operating permits. The level and 
performance of Allegheny County's enforcement as a whole, while perhaps 
affecting Allegheny's permit issuance program, is not the primary focus 
of this revision to the Pennsylvania SIP. Rather the primary focus is 
the establishment of regulation for the Allegheny County portion of the 
Pennsylvania SIP for a state run permit program which is federally 
enforceable.
    EPA also disagrees with the commentor's assertion that the ACHD's 
FESOP program is a ``partial program'' under 40 CFR 70.4(c)(2). The 
requirements of 40 CFR 70.4(b), including the requirement of 40 CFR 
70.4(b)(8), are minimum requirements for title V operating permit 
programs that EPA approves pursuant to title V and part 70. However, 
FESOP programs are not title V programs and are not subject to the 
requirements of title V and part 70. As EPA explained in the June 28, 
1989 Federal Register notice, FESOP programs are required to meet

[[Page 52833]]

five criteria for EPA approval, and they are approved as part of a SIP 
pursuant to EPA's authority under title I of the Act, including section 
110. The commentor argues that the ACHD's FESOP program is a ``partial 
program'' under 40 CFR 70.4(c)(2), because many sources will obtain 
FESOPs in order to avoid title V applicability. However, the commentor 
misunderstands the nature of a partial program under title V. It is 
true that the ACHD's title V operating permit program is a partial 
program. Yet, in the case of the ACHD's title V operating permit 
program, the term ``partial'' is a geographic reference which indicates 
that the ACHD is the title V permitting authority for sources in 
Allegheny County, while the Pennsylvania DEP or another local agency is 
the title V permitting authority elsewhere in Pennsylvania. See 66 FR 
55112, Nov. 1, 2001. This means that all of the title V sources in 
Allegheny County--in other words, all of the sources in the County that 
are subject to title V permitting requirements--are required to obtain 
a title V operating permit from the ACHD. As indicated previously, the 
ACHD's FESOP program approved today will be a separate permitting 
program that is part of the SIP. It will not be used to fulfill the 
requirements of title V and part 70, and therefore it is not subject to 
those requirements. Moreover, sources that lawfully obtain FESOPs to 
avoid title V applicability are not subject to the title V program so 
long as they operate in compliance with their FESOPs.
    In addition, EPA's ``ACHD 105 Grant Midyear Report Executive 
Summary,'' dated May 24, 2004, identifies significant improvements in 
performance and personnel resources since the issuance of the 2003 
report. The 105 Grant Midyear Report Executive Summary states, ``The 
ACHD is to be commended for its efforts to address the issues raised in 
EPA's `Review of Allegheny County Health Department's Air Enforcement & 
Compliance Program' report. Since the issuance of the June 2003 report, 
the ACHD has implemented several of its recommendations. The most 
notable being the hiring of the Chief of the Enforcement Section and an 
attorney. The ACHD has identified and addressed four new HPVs [High 
Priority Violators] in conformance with the Timely and Appropriate to 
High Priority Violators Policy. Additionally, the ACHD provides copies 
of NOVs [Notices of Violations] and orders pertaining to HPVs in a 
timely matter.'' EPA believes ACHD has made considerable progress in 
addressing the concerns raised in the 2003 ACHD Air Enforcement and 
Compliance Report.
    Finally, for the reasons stated in this notice and in our June 26, 
2003 DFR and NPR notices, EPA disagrees with the commentor's assertions 
that EPA should grant conditional approval of this SIP revision. There 
are no regulatory revisions or additions that need to be made to the 
ACHD's regulation. EPA has determined that Allegheny County's operating 
permit regulation, as submitted by the Commonwealth of Pennsylvania, 
meets the five criteria for full approval as a revision to the 
Pennsylvania SIP and, with respect to HAP, meets the requirements of 
section 112(l) of the CAA.

IV. Final Action

    EPA is approving the SIP revision that was submitted by the 
Pennsylvania DEP on behalf of the ACHD on November 9, 1998, as amended 
on March 1, 2001. The revision consists of the ACHD's regulation which 
provides for the procedural and legal issuance of federally enforceable 
state operating permits (FESOPs) for sources of air pollution located 
in Allegheny County.

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 
``major rule'' as defined by 5 U.S.C. 804(2).

[[Page 52834]]

C. Petitions for Judicial Review

    Under section 307(b)(1) of the Act, 42 U.S.C. 7607(b)(1), petitions 
for judicial review of this action must be filed in the United States 
Court of Appeals for the appropriate circuit by October 29, 2004. 
Filing a petition for reconsideration by the Administrator of this 
final rule approving ACHD's regulation for a FESOP program 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 civil or criminal 
enforcement proceedings. (See section 307(b)(2), 42 U.S.C. 7607(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: August 18, 2004.
Richard J. Kampf,
Acting Regional Administrator, Region III.

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 for a federally enforceable state operating permit 
program applicable in Allegheny County, Pennsylvania 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 
pertaining to the revisions listed in paragraph (c)(209)(i) of this 
section.

[FR Doc. 04-19715 Filed 8-27-04; 8:45 am]
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