[Federal Register Volume 77, Number 71 (Thursday, April 12, 2012)]
[Proposed Rules]
[Pages 21908-21911]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8852]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2009-0882; FRL-9656-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; Streamlining Amendments to the Plan Approval Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to grant limited approval to a State 
Implementation Plan (SIP) revision submitted by the Pennsylvania 
Department of Environmental Protection (PADEP) on April 14, 2009. The 
revision pertains to PADEP's plan approval requirements for the 
construction, modification, and operation of sources, and is primarily 
intended to streamline the process for minor permitting actions. This 
action is being taken under the Clean Air Act (CAA).

DATES: Written comments must be received on or before May 14, 2012.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2009-0882 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.

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    B. Email: [email protected].
    C. Mail: EPA-R03-OAR-2009-0882, Kathleen Cox, Associate Director, 
Office of Permits and Air Toxics, Mailcode 3AP10, U.S. Environmental 
Protection Agency, Region III, 1650 Arch Street, Philadelphia, 
Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2009-0882. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov, your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. 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. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., 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 in www.regulations.gov or 
in hard copy 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: David Talley, (215) 814-2117, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. On April 14, 2009, PADEP 
submitted revisions to its State Implementation Plan (SIP). The 
proposed revisions consist of amendments to the plan approval 
requirements for the construction, modification, reactivation, and 
operation of sources.

Table of Contents

I. Background
II. Summary of SIP Revision
III. Proposed Action
IV. Statutory and Executive Order Reviews

I. Background

    Generally speaking, anyone constructing or operating a source in 
Pennsylvania that emits pollutants into the air must comply with the 
general requirement to obtain a ``plan approval'' prior to construction 
as outlined in 25 Pa. Code 127, Subchapters A and B. These subchapters 
are generally considered the state's minor New Source Review (NSR) 
program covering minor sources as well as minor changes at major 
sources. Major sources are subject to the additional requirements of 
subchapters D Prevention Significant Deterioration (PSD) and E 
(nonattainment NSR). Subchapter E also includes additional provisions 
relating to minor changes at major sources for ozone precursors 
Nitrogen Oxides and Volatile Organic Compounds (NOx and VOCs). A plan 
approval is a permit that authorizes construction, installation, or 
modification of any air pollution source. In evaluating the plan 
approval application, PADEP checks to see that both the operation of 
the source and the control equipment installed to reduce air pollution 
meet the applicable technical and engineering requirements. The public 
is given an opportunity to comment on the plan approval application. In 
addition to being a permit to construct, the plan approval provides 
temporary authorization for the source to operate to assure that the 
equipment functions properly. This temporary authorization is known as 
the ``shakedown'' period.
    The plan approval regulations that are the subject of this proposed 
action are codified at 25 Pa. Code 127, Subchapter B (relating to 
general requirements for all plan approvals). EPA last took action on 
these provisions on July 30, 1996. Pennsylvania adopted the amendments 
being proposed in this action, and published notice of final rulemaking 
in the Pennsylvania Bulletin on May 24, 2008. The primary purpose of 
the amendments is to streamline the permitting process by eliminating 
some of the administrative burden and costs associated with processing 
minor permitting actions, while preserving the right of the public to 
review and comment on those proposed actions. The proposed amendments 
generally affect five regulations: Section 127.12b, pertaining to 
``shakedown'' periods for new or modified sources; section 127.12d, 
pertaining to completeness determinations; sections 127.44 and 127.45, 
pertaining to public notice requirements; and section 127.48, 
pertaining to conferences and hearings. The specific revisions are 
discussed in detail below.

II. Summary of SIP Revision

A. 25 Pa. Code 127.12b: Plan Approval Terms and Conditions

    Section 127.12b(d), as approved by EPA on July 30, 1996, authorizes 
a temporary ``shakedown'' period for new and modified sources and air 
cleaning equipment for a period of 180 days pending issuance of a state 
operating permit or a Title V permit, ``* * * to permit the evaluation 
of the air contamination aspects of the source'' (see section 
127.12b(d)). The regulation as currently approved in Pennsylvania's SIP 
also allows for limited extensions of this period, with each extension 
limited to 120 days. The proposed revision increases the permissible 
duration of the extensions to 180 days.

B. 25 Pa. Code 127.12d: Completeness Determination

    The proposed revisions incorporate new requirements into the 
Pennsylvania SIP that outline PADEP's obligations with respect to 
determining whether an applicant has submitted an administratively 
complete application, and notifying the applicant of that decision. 
These requirements are codified at section 127.12d(a) thru (c). Section 
127.12d(a) requires PADEP to make a completeness determination and 
provide notice to the applicant within 30 days of receipt of the 
application. Section 127.12d(b) establishes guidelines for what 
constitutes an administratively complete application.

[[Page 21910]]

In the event an application is deemed to be incomplete, section 
127.12d(c) requires PADEP to notify the applicant of the specific 
deficiency, and to return the application and fees to the applicant if 
the requested information is not submitted within ten (10) working days 
of being notified by PADEP that the application is incomplete. These 
regulations as proposed by PADEP are consistent with CAA requirements, 
and are in fact more prescriptive than their Federal counterparts at 40 
CFR 51.166(q)(1).

C. 25 Pa. Code 127.44: Public Notice and 25 Pa. Code 127.45: Contents 
of Notice

    The public notice requirements of section 127.44 as currently 
approved in the Pennsylvania SIP make no distinction between major and 
minor permitting actions--the requirements are the same. Pennsylvania 
adopted the proposed revisions to the public notice requirements of 
section 127.44 (and 127.45, below) in an effort to streamline the 
process for minor permitting actions and allow PADEP to focus its 
limited resources on major permitting actions.
    In the current SIP, section 127.44 sections (a)(1) thru (6) list 
the types of plan approvals for which the public notice requirements 
apply. These include section (a)(5): ``Other sources required to obtain 
plan approval,'' which has the effect of applying the notice 
requirements to all plan approval actions equally. Pennsylvania has a 
robust minor New Source Review (NSR) program. Very few sources escape 
the requirement to obtain a plan approval, and every plan approval is 
subject to public notice requirements. Prior to these revisions, 
significant time and resources were being spent on relatively minor 
permitting actions. The proposed revisions involve the bifurcation of 
the notice requirements into a new section 127.44(a) which applies to 
minor actions, and a new section 127.44(b) which applies to major 
actions as well as any action for which PADEP determines that 
significant public interest exists. The remaining unchanged sections 
were re-ordered sequentially to allow for the bifurcation.
    Pursuant to the proposed amendments, under the revised section 
127.44(a) PADEP will publish a ``notice of receipt and intent to 
issue'' in the Pa. Bulletin for each plan approval application relating 
to a minor permitting action. PADEP has, as a policy, generally 
published two notices for all plan approval actions: one upon receipt 
of an application, and one of intent to issue a proposed plan approval. 
Under the proposed revisions, proposed plan approval actions that are 
subject to section 127.44(a) will be issued at the end of the public 
comment period without further notice, unless significant public 
comments are received. The notice requirements for major actions, now 
at section 127.44(b), were not substantively amended. We read the 
requirements of section 127.44(f) to apply to all plan approvals that 
are subject to section 127.44. These include the requirement that the 
application materials be made available for review in the region 
affected by the project, and that a 30-day public comment period be 
established (127.44(f)(1) and (f)(2) respectively).
    In the proposed revisions, section 127.45 was similarly bifurcated 
to incorporate separate requirements for minor and major actions. As 
with the notice requirements of section 127.44, the content 
requirements of section 127.45 for permitting actions considered by 
PADEP to be major, (now at 127.45(b)), were not substantively modified. 
For minor actions, section 127.45(a) outlines what must be included in 
each ``notice of receipt and intent to issue.'' These requirements 
include: the name and address of the applicant and the location of the 
source, a brief discussion of the proposed action including a 
description of the source, the control technology, the conditions being 
placed in the permit, and the type and quantity of air contaminants 
being emitted, as well as a point of contact at PADEP, and the 
statement that a person may oppose the proposed plan approval by filing 
a written protest with the appropriate regional office (see proposed 
section 127.45(a)). The requirements for minor permitting actions under 
this section do not vary significantly from the requirements for major 
actions. The primary differences are that section 127.45(b) requires a 
description of increment consumption (where applicable), and a 
description of the procedures for reaching a final decision on the 
proposed plan approval, including the end date for receipt of written 
protests, procedures for requesting a hearing, and other procedures for 
public involvement in the final decision (see proposed section 
127.45(b)(6)). The result of the proposed revisions to sections 127.44 
and 127.45 is that for minor permitting actions, public notice of the 
proposed action will be less detailed than for major actions, will be 
provided once, and only in the Pa. Bulletin (which publishes online and 
in print).
    The Federal requirements with regard to public availability of 
information are codified at 40 CFR 51.161. Specifically, 40 CFR 
51.161(a) requires that ``[t]he public information must include the 
agency's analysis of the effect of construction or modification on 
ambient air quality, including the agency's proposed approval or 
disapproval.'' EPA believes that to some extent, the intent of section 
51.161(a) was met in sections 127.45(a)(3) and (4) of Pennsylvania's 
proposed SIP revision, which discuss the content of the public notice. 
These sections require a description of the proposed construction or 
modification, the control technology being installed, the conditions in 
the proposed permit (with reference to applicable federal 
requirements), and the type and quantity of air contaminants being 
emitted. Nevertheless, the agency analysis required by 40 CFR 51.161(a) 
is not explicitly required in the proposed SIP revision, nor do the 
regulations of sections 127.44 and 127.45 require that the agency's 
analysis be made available for public inspection in at least one 
location, in accordance with 40 CFR 51.161(b)(1). Section 127.44(f)(1) 
requires only that the application be made available. Therefore, EPA is 
proposing to grant limited approval to PADEP's proposed revision. To 
receive full approval, PADEP must adopt the explicit requirement that 
the agency's analysis be included in the information provided to the 
public for comment pursuant to 40 CFR 51.161(a), as well as the 
requirement that the analysis be made available for public inspection 
pursuant to 40 CFR 51.161(b)(1), and submit those changes to EPA as a 
formal SIP revision.

D. 25 Pa. Code 127.48: Conferences and Hearings

    The regulations at section 127.48 contain the requirements 
regarding public hearings or fact finding conferences on proposed plan 
approvals. The PADEP may, at its discretion, hold such a hearing when 
it is deemed necessary due to sufficient public impact or interest. The 
proposed amendments to section 127.48(b) include some clarifying 
language regarding hearing notices. More substantively, the amendments 
include the requirement to publish notice ``* * * in a newspaper of 
general circulation in the county in which the source is to be located 
* * *''. The current SIP only requires that the notice be published in 
the Pa. Bulletin or a newspaper. The regulations as amended in the 
proposed SIP revision require both, and as such represent a 
strengthening of the SIP.

III. Proposed Action

    EPA's review of this material indicates that with the one noted

[[Page 21911]]

exception, the proposed revisions to 25 Pa. Code 127, Subchapter B meet 
or exceed Federal requirements. EPA is proposing to grant limited 
approval to the Pennsylvania SIP revision, which was submitted on April 
14, 2009. EPA is soliciting public comments on the issues discussed in 
this document. These comments will be considered before taking final 
action.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA 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 CAA. Accordingly, this 
action merely proposes to approve state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed 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 CAA; 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 proposed action regarding streamlining amendments to 
Pennsylvania's plan approval process 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

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

    Dated: March 28, 2012.
W.C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2012-8852 Filed 4-11-12; 8:45 am]
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