[Federal Register Volume 74, Number 236 (Thursday, December 10, 2009)]
[Rules and Regulations]
[Pages 65446-65449]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-29216]



[[Page 65446]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2009-0370; FRL-9090-2]


Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; Clean Air Interstate Rule; NOX SIP Call Rule; Amendments 
to NOX Control Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the Commonwealth of Pennsylvania. The revision addresses 
the requirements of EPA's Clean Air Interstate Rule (CAIR) and modifies 
other requirements in Pennsylvania's SIP that interact with CAIR 
including: The termination of Pennsylvania's NOX Budget 
Trading Program; statewide provisions for large, stationary internal 
combustion engines; statewide provisions for large cement kilns; 
provisions for small sources of NOX in the Pennsylvania 
portion of the Philadelphia 8-hour ozone nonattainment area; and 
emission reduction credits. EPA is determining that the SIP revision 
fully implements the CAIR requirements for Pennsylvania. Although the 
D.C. Circuit found CAIR to be flawed, the rule was remanded without 
vacatur and thus remains in place. Thus, EPA is continuing to take 
action on CAIR SIPs as appropriate. CAIR, as promulgated, requires 
States to reduce emissions of SO2 and NOX that 
significantly contribute to, or interfere with maintenance of, the 
national ambient air quality standards (NAAQS) for fine particulates 
and/or ozone in any downwind state. CAIR establishes budgets for 
SO2 and NOX for States that contribute 
significantly to nonattainment in downwind States and requires the 
significantly contributing States to submit SIP revisions that 
implement these budgets. States have the flexibility to choose which 
control measures to adopt to achieve the budgets, including 
participation in EPA-administered cap-and-trade programs addressing 
SO2, NOX annual, and NOX ozone season 
emissions. In the SIP revision that EPA is approving, Pennsylvania will 
meet CAIR requirements by participating in these cap-and-trade 
programs. EPA is approving the SIP revision, with the exceptions noted, 
as fully implementing the CAIR requirements for Pennsylvania. 
Consequently, this action will also cause the CAIR Federal 
Implementation Plans (CAIR FIPs) concerning SO2, 
NOX annual, and NOX ozone season emissions by 
Pennsylvania sources to be automatically withdrawn.

DATES: Effective Date: The final rule is effective on December 10, 
2009.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2009-0370. All documents in the docket are listed in 
the http://www.regulations.gov Web site. Although listed in the 
electronic docket, some information is not publicly available, i.e., 
confidential business information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through http://www.regulations.gov or in hard copy 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. Copies of the State submittal are available at the 
Pennsylvania Department of Environmental Protection, Bureau of Air 
Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg, 
Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Marilyn Powers, (215) 814-2308, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

Table of Contents

I. What Action Did EPA Propose?
II. Summary of Pennsylvania SIP Revision
III. What Is the Final Action?
IV. What Is the Effective Date?
V. Statutory and Executive Order Reviews

I. What Action Did EPA Propose?

    On September 24, 2009 (74 FR 48695), EPA published a notice of 
proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR 
proposed approval of a revision to the Pennsylvania SIP that addresses 
EPA's CAIR requirements and modifies other requirements in 
Pennsylvania's SIP that interact with CAIR including: The termination 
of Pennsylvania's NOX Budget Trading Program; statewide 
provisions for large, stationary internal combustion engines; statewide 
provisions for large cement kilns; provisions for small sources of 
NOX in the Pennsylvania portion of the Philadelphia 8-hour 
ozone nonattainment area; and emission reduction credits.

II. Summary of Pennsylvania SIP Revision

    On May 23, 2008, the Pennsylvania Department of Environmental 
Protection (PADEP) submitted a full CAIR SIP revision to meet the 
requirements of CAIR, which was promulgated on May 12, 2005 (70 FR 
25162), and subsequently revised on April 28, 2006, and December 13, 
2006. The SIP revision consisted of amendments to Pennsylvania 
regulations codified at 25 Pa. Code Chapters 121, 129, and 145. The SIP 
revision addresses all the requirements of the 40 CFR part 96 model 
rules set forth in the May 12, 2005 CAIR rulemaking. In addition, the 
SIP revision modifies other requirements in Pennsylvania's SIP that 
interact with CAIR. A detailed discussion of the CAIR requirements, the 
CAIR history (including the CAIR remand), Pennsylvania's CAIR 
submittal, the other modifications in the SIP revision that interact 
with CAIR, and EPA's rationale for approval of the Pennsylvania SIP 
revision may be found in the NPR and will not be repeated here. No 
comments were received.
    EPA notes that, in North Carolina, 531 F.3d at 916-21, the Court 
determined, among other things, that the State SO2 and 
NOX budgets established in CAIR were arbitrary and 
capricious.\1\ However, as discussed above, the Court also decided to 
remand CAIR but to leave the rule in place in order to ``temporarily 
preserve the environmental values covered by CAIR'' pending EPA's 
development and promulgation of a replacement rule that remedies CAIR's 
flaws. North Carolina, 550 F.3d at 1178. EPA had indicated to the Court 
that development and promulgation of a replacement rule would take 
about two years. Reply in Support of Petition for Rehearing or 
Rehearing en Banc at 5 (filed Nov. 17, 2008 in North Carolina v. EPA, 
Case No. 05-1224, D.C. Cir.). The process at EPA of developing a 
proposal that will undergo notice and comment and result in a final 
replacement rule is ongoing. In the meantime, consistent with the

[[Page 65447]]

Court's orders, EPA is implementing CAIR by approving State SIP 
revisions that are consistent with CAIR (such as the provisions setting 
State SO2 and NOX budgets for the CAIR trading 
programs) in order to ``temporarily preserve'' the environmental 
benefits achievable under the CAIR trading programs.
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    \1\ The Court also determined that the CAIR trading programs 
were unlawful (id. at 906-8) and that the treatment of title IV 
allowances in CAIR was unlawful (id. at 921-23). For the same 
reasons that EPA is approving the provisions of Pennsylvania's SIP 
revision that use the SO2 and NOX budgets set 
in CAIR, EPA is also approving, as discussed below, Pennsylvania's 
SIP revision to the extent the SIP revision adopts the CAIR trading 
programs, including the provisions, addressing applicability, 
allowance allocations, and use of title IV allowances.
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III. What Is the Final Action?

    EPA is approving the Pennsylvania CAIR SIP revision submitted on 
July 23, 2008. Under the SIP revision, Pennsylvania will participate in 
the EPA-administered cap-and-trade programs for NOX annual, 
NOX ozone season, and SO2 annual emissions. The 
SIP revision meets the applicable requirements in 40 CFR 51.123(o) and 
(aa), with regard to NOX annual and NOX ozone 
season emissions, and 40 CFR 51.124(o), with regard to SO2 
emissions. As a consequence of the SIP approval, the CAIR FIPs for 
Pennsylvania are automatically withdrawn, in accordance with the 
automatic withdrawal provisions of EPA's November 2, 2007 rulemaking 
(72 FR 62338). The automatic withdrawal is reflected in the rule text 
that accompanies this notice and deletes and reserves the provisions in 
Part 52 that establish the CAIR FIPs for Pennsylvania sources.
    The SIP revision also modifies other requirements in Pennsylvania's 
SIP that interact with CAIR including: The termination of 
Pennsylvania's NOX Budget Trading Program; statewide 
provisions for large, stationary internal combustion engines; statewide 
provisions for large cement kilns; provisions for small sources of 
NOX in the Pennsylvania portion of the Philadelphia 8-hour 
ozone nonattainment area; and emission reduction credits.

IV. What Is the Effective Date?

    EPA finds that there is good cause for this approval to become 
effective upon publication because a delayed effective date is 
unnecessary due to the nature of the approval, which allows the 
Commonwealth, as indicated in the NPR for this rulemaking, to use its 
own methodology for distribution and timing of NOX 
allowances. The expedited effective date for this action is authorized 
under both 5 U.S.C. 553(d)(1), which provides that rule actions may 
become effective less than 30 days after publication if the rule 
``grants or recognizes an exemption or relieves a restriction'' and 
section 5 U.S.C. 553(d)(3), which allows an effective date less than 30 
days after publication ``as otherwise provided by the agency for good 
cause found and published with the rule.''
    CAIR SIP approvals relieve states and CAIR sources within states 
from being subject to provisions in the CAIR FIPs that otherwise would 
apply to them, allowing states to implement CAIR based on their SIP-
approved state rule. The relief from these obligations is sufficient 
reason to allow an expedited effective date of this rule under 5 U.S.C. 
553(d)(1). In addition, Pennsylvania's relief from these obligations 
provides good cause to make this rule effective immediately upon 
publication, pursuant to 5 U.S.C. 553(d)(3). The purpose of the 30-day 
waiting period prescribed in 5 U.S.C. 553(d) is to give affected 
parties a reasonable time to adjust their behavior and prepare before 
the final rule takes effect. Where, as here, the final rule relieves 
obligations rather than imposes obligations, affected parties, such as 
the Commonwealth of Pennsylvania and CAIR sources within the 
Commonwealth, do not need time to adjust and prepare before the rule 
takes effect.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

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 action 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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action 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 February 8, 2010. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed,

[[Page 65448]]

and shall not postpone the effectiveness of such rule or action.
    This action to approve the Pennsylvania SIP revision to meet the 
requirements of CAIR and modify associated provisions that interact 
with CAIR 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, Reporting and 
recordkeeping requirements, Sulfur oxides.

    Dated: November 25, 2009.
Shawn M. Garvin,
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. In Sec.  52.2020, the table in paragraph (c)(1) is amended by:
0
a. Revising entries for Title 25, Chapter 121, Section 121.1, Chapter 
129, Sections 129.201, 129.202, and 129.204; Subchapter B, Section 
145.113, and Subchapter C, Section 145.143.
0
b. Adding, in order of Section number, entries for Title 25, Chapter 
145, Subchapter A, Section 145.8; Subchapter D, Sections 145.201 
through 145.205, Sections 145.211 through 145.213, and Sections 145.221 
through 145.223.
    The amendments read as follows:


Sec.  52.2020  Identification of plan.

* * * * *
    (c) * * *
    (1) * * *

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                                                                                                  Additional
         State citation              Title/subject          State        EPA approval date     explanation/Sec.
                                                       effective date                          52.2063 citation
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                          TITLE 25. ENVIRONMENTAL PROTECTION ARTICLE III. AIR RESOURCES
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                         CHAPTER 121. GENERAL PROVISIONS
----------------------------------------------------------------------------------------------------------------
Section 121.1..................  Definitions.........         4/12/08  12/10/09 [Insert      Add definition for
                                                                        page number where     ``vintage or
                                                                        the document          vintage year.''
                                                                        begins].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                         CHAPTER 129. STANDARDS FOR SOURCES ADDITIONAL NOX REQUIREMENTS
----------------------------------------------------------------------------------------------------------------
Section 129.201................  Boilers.............         4/12/08  12/10/09 [Insert      Revised section.
                                                                        page number where
                                                                        the document
                                                                        begins].
Section 129.202................  Stationary                   4/12/08  12/10/09 [Insert      Revised section.
                                  combustion turbines.                  page number where
                                                                        the document
                                                                        begins].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
Section 129.204................  Emission                     4/12/08  12/10/09 [Insert      Revised section.
                                  accountability.                       page number where
                                                                        the document
                                                                        begins].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                              CHAPTER 145. INTERSTATE POLLUTION TRANSPORT REDUCTION
                           Subchapter A. NOX Budget Trading Program General Provisions
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 145.8..................  Transition to CAIR           4/12/08  12/10/09 [Insert      New section.
                                  NOX Trading                           page number where
                                  Programs.                             the document
                                                                        begins].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                   Subchapter B. Emissions of NOX From Stationary Internal Combustion Engines
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 145.113................  Standard                     4/12/08  12/10/09 [Insert      New subsection d.
                                  requirements.                         page number where
                                                                        the document
                                                                        begins].
----------------------------------------------------------------------------------------------------------------
                            Subchapter C. Emissions of NOX From Cement Manufacturing
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 145.143................  Standard                     4/12/08  12/10/09 [Insert      ...................
                                  requirements.                         page number where
                                                                        the document
                                                                        begins].
----------------------------------------------------------------------------------------------------------------
                       Subchapter D. CAIR NOX and SO2 Trading Programs--General Provisions
----------------------------------------------------------------------------------------------------------------
Section 145.201................  Purpose.............         4/12/08  12/10/09 [Insert      ...................
                                                                        page number where
                                                                        the document
                                                                        begins].

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Section 145.202................  Definitions.........         4/12/08  12/10/09 [Insert      ...................
                                                                        page number where
                                                                        the document
                                                                        begins].
Section 145.203................  Applicability.......         4/12/08  12/10/09 [Insert      ...................
                                                                        page number where
                                                                        the document
                                                                        begins].
Section 145.204................  Incorporation of             4/12/08  12/10/09 [Insert      ...................
                                  Federal regulations                   page number where
                                  by reference.                         the document
                                                                        begins].
----------------------------------------------------------------------------------------------------------------
                  ADDITIONAL REQUIREMENTS FOR CHAPTER 127 EMISSION REDUCTION CREDIT PROVISIONS
----------------------------------------------------------------------------------------------------------------
Section 145.205................  Emission reduction           4/12/08  12/10/09 [Insert      ...................
                                  credit provisions.                    page number where
                                                                        the document
                                                                        begins].
----------------------------------------------------------------------------------------------------------------
                           ADDITIONAL REQUIREMENTS FOR CAIR NOX ANNUAL TRADING PROGRAM
----------------------------------------------------------------------------------------------------------------
Section 145.211................  Timing Requirements          4/12/08  12/10/09 [Insert      ...................
                                  for CAIR NOX                          page number where
                                  allowance                             the document
                                  allocations.                          begins].
Section 145.212................  CAIR NOX allowance           4/12/08  12/10/09 [Insert      ...................
                                  allocations.                          page number where
                                                                        the document
                                                                        begins].
Section 145.213................  Supplemental                 4/12/08  12/10/09 [Insert      ...................
                                  monitoring,                           page number where
                                  recordkeeping and                     the document
                                  reporting                             begins].
                                  requirements for
                                  gross electrical
                                  output and useful
                                  thermal energy for
                                  units subject to 40
                                  CFR 96.170-96.175.
----------------------------------------------------------------------------------------------------------------
                        ADDITIONAL REQUIREMENTS FOR CAIR NOX OZONE SEASON TRADING PROGRAM
----------------------------------------------------------------------------------------------------------------
Section 145.221................  Timing requirements          4/12/08  12/10/09 [Insert      ...................
                                  for CAIR NOX ozone                    page number where
                                  season allowance                      the document
                                  allocations.                          begins].
Section 145.222................  CAIR NOX Ozone               4/12/08  12/10/09 [Insert      ...................
                                  Season allowance                      page number where
                                  allocations.                          the document
                                                                        begins].
Section 145.223................  Supplemental                 4/12/08  12/10/09 [Insert      ...................
                                  monitoring,                           page number where
                                  recordkeeping and                     the document
                                  reporting                             begins].
                                  requirements for
                                  gross electrical
                                  output and useful
                                  thermal energy for
                                  units subject to 40
                                  CFR 96.370-96.375.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *


Sec.  52.2040  [Removed and Reserved]

0
3. Section 52.2040 is removed and reserved.


Sec.  52.2041  [Removed and Reserved]

0
4. Section 52.2041 is removed and reserved.

[FR Doc. E9-29216 Filed 12-9-09; 8:45 am]
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