[Federal Register Volume 77, Number 186 (Tuesday, September 25, 2012)]
[Rules and Regulations]
[Pages 58955-58962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-23497]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2010-0159; FRL-9731-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Commonwealth of Pennsylvania; Section 110(a)(2) Infrastructure 
Requirements for the 1997 8-Hour Ozone and the 1997 and 2006 Fine 
Particulate Matter National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving submittals from the Commonwealth of 
Pennsylvania pursuant to the Clean Air Act (CAA). Whenever new or 
revised National Ambient Air Quality Standards (NAAQS) are promulgated, 
the CAA requires states to submit a plan for the implementation, 
maintenance and enforcement of such NAAQS. The plan is required to 
address basic program elements including, but not limited to, 
regulatory structure, monitoring, modeling, legal authority, and 
adequate resources necessary to assure attainment and maintenance of 
the standards. These elements are referred to as infrastructure 
requirements. Pennsylvania has made submittals addressing the 
infrastructure requirements for the 1997 8-hour ozone and fine 
particulate matter (PM2.5) NAAQS and the 2006 
PM2.5 NAAQS. This action approves those submittals, or 
portions thereof.

DATES: This final rule is effective on October 25, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2010-0159. All documents in the docket are listed in 
the 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 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: Ruth Knapp, (215) 814-2191, or by 
email at [email protected].

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

I. Background

    On September 1, 2011 (76 FR 54410), EPA published a notice of 
proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR 
proposed approval of Pennsylvania's submittals that provide the 
infrastructure elements specified in CAA section 110(a)(2)(A), (B), 
(C), (D), (E), (F), (G), (H), (J), (K), (L), and (M), or portions 
thereof, necessary to implement, maintain, and enforce the 1997 8-hour 
ozone and PM2.5 NAAQS and the 2006 PM2.5 NAAQS. 
The submittals by the Commonwealth of Pennsylvania dated December 7, 
2007 and June 6, 2008 addressed the section 110(a)(2) requirements for 
the 1997 8-hour ozone NAAQS. The submittals dated December 7, 2007, 
June 6, 2008, and April 26, 2010 addressed the section 110(a)(2) 
requirements for the 1997 PM2.5 NAAQS. Finally, the 
submittals dated April 26, 2010 and May 24, 2011 addressed the section 
110(a)(2) requirements for the 2006 PM2.5 NAAQS.

II. Summary of SIP Revision

    The submittals referenced in the Background section above address 
the infrastructure elements specified in CAA section 110(a)(2) as 
applicable. These submittals provide for the implementation, 
maintenance, and enforcement of the 1997 8-hour ozone NAAQS, the 1997 
PM2.5 NAAQS, and the 2006 PM2.5 NAAQS. The 
rationale supporting EPA's proposed action

[[Page 58956]]

including the scope of infrastructure SIPs in general is explained in 
the NPR and the technical support document (TSD) accompanying the NPR 
and will not be restated here. The TSD is available online at 
www.regulations.gov, Docket ID Number EPA-R03-OAR-2010-0159. On October 
3, 2011, EPA received public comments on its September 1, 2011 NPR from 
the Clean Air Council and the Sierra Club (referred to herein as 
Commenter). A summary of the comments submitted and EPA's responses are 
provided in Section III of this action.

III. Summary of Public Comments and EPA Responses

    Comment: The Commenter raises concerns relating to Pennsylvania's 
ambient air monitoring system. According to the Commenter, ``The 
current monitoring system does not account for the Marcellus Shale 
industry and therefore the ambient air quality monitoring plan is 
inadequate to monitor, collect and analyze the NAAQS.'' The Commenter 
provides descriptions of one study and one event to support a general 
concern that ``impacts of oil and gas development on air quality are by 
no means insignificant.'' The Commenter does not identify any specific 
Federally enforceable air quality monitoring requirement with which 
Pennsylvania's monitoring system fails to comply for either the 1997 
ozone NAAQS or for the 1997 or 2006 PM2.5 NAAQS.
    Response: EPA disagrees with the Commenter concerning the statutory 
infrastructure requirements for monitoring. The infrastructure 
requirement at issue is set forth at CAA section 110(a)(2)(B)(i) and 
requires that, for each NAAQS at issue, Pennsylvania's SIP must 
``provide for establishment and operation of appropriate devices, 
methods, systems, and procedures necessary to (i) monitor, compile, and 
analyze data on ambient air quality * * *'' EPA has documented in the 
TSD and the administrative record supporting the rulemaking that 
Pennsylvania has met this statutory requirement. In the course of 
evaluating the submittals, EPA confirmed that the Commonwealth has met 
the monitoring requirements for the 1997 ozone and 1997 and 2006 
PM2.5 NAAQS. Pennsylvania has three Federally approved air 
quality monitoring plans. The Pennsylvania Department of Environmental 
Protection (PADEP) establishes, operates and maintains a network of 
ambient air monitors throughout Pennsylvania, excluding Philadelphia 
and Allegheny Counties. Both Philadelphia Air Management Services (AMS) 
and the Allegheny County Health Department (ACHD) operate separate air 
monitoring networks and collect data pursuant to the Federally approved 
monitoring plans within these areas. Each annual monitoring network 
plan is made available for public inspection for at least 30 days prior 
to submission to EPA. See 40 CFR 58.10(a)(1). Additionally, as required 
in 40 CFR 58.10, each state is required to submit an annual network 
design plan to the EPA Regional Administrator by July 1 of each year. 
The most recent monitoring plans approved by EPA were submitted by 
PADEP on August 4, 2011, by AMS on July 1, 2011 and by ACHD on July 1, 
2011. EPA approved each of these plans and notified the appropriate 
entity of the approval on December 6, 2011. These approval letters may 
be found in the docket supporting this action. The Commenter raises no 
issue as to whether the regulatory requirements set forth in 40 CFR 
Part 58, Subpart B have been met or whether the public has had 
opportunities to submit comments on each annual network plan or 
modifications to such plans in accordance with 40 CFR 58.14. Rather, 
the Commenter seems to request EPA to expand the statutory requirement 
for the infrastructure SIP set forth in CAA section 110(a)(2)(B) to 
include air quality monitoring criteria for a specific industry that 
goes beyond the current regulatory requirements for monitoring networks 
for ozone and PM2.5. EPA continues to believe that the 
relevant ambient air quality monitoring and data systems in 
Pennsylvania meet the statutory requirement that a state's SIP must 
provide for the establishment and operation of appropriate devices, 
methods, systems and procedures to monitor, compile and analyze data on 
ambient air quality because the monitoring network meets current 
regulatory requirements and is consistent with applicable EPA guidance. 
The Commenter may submit comments and suggestions concerning the 
monitoring networks in another more appropriate forum by submitting 
comments on future annual monitoring network plan submissions prepared 
by PADEP, AMS or ACHD which are open to public comment prior to being 
submitted to EPA.
    Comment: After summarizing the statutory language of CAA section 
110(a)(2)(C), the Commenter raises concerns about Pennsylvania's 
current permitting program and states that, ``The current permitting 
program is inadequate to assure that the NAAQS are achieved because it 
exempts all engines less than 100 horsepower associated with oil and 
gas industry.'' In support of this general concern, the Commenter cites 
to 25 Pa. Code section 127.14 (relating to exemptions) and states, 
``PADEP may determine sources or classes of sources to be exempt from 
the plan approval and permitting requirements of 25 Pa. Code Chapter 
127 (relating to construction, modification, reactivation, and 
operation of sources).'' The Commenter asserts that, ``The blanket 
exemption for oil and gas exploration and production facilities and 
operation except for gas compressor station engines equal to or greater 
than 100 HP or gas extraction wells at landfills is inconsistent with 
the CAA.'' The Commenter also raises concerns relating to ozone 
maintenance plans that were submitted by Pennsylvania in accordance 
with a separate statutory requirement. The Commenter claims such plans 
are inadequate due to recent gas and oil activity.
    Response: The comments at issue acknowledge that Pennsylvania has a 
program as described by CAA section 110(a)(2)(C) which is ``a program 
to provide for the * * * regulation of the modification and 
construction of any stationary source within [Pennsylvania] as 
necessary to assure that the NAAQS are achieved.'' The comments focus 
on the adequacy of such a program, rather than the existence of such a 
program. The Commenter's conclusory statements that specific exemptions 
in Pennsylvania's regulations governing the modification and 
construction of air contamination sources cause the program to be 
``inadequate to assure that the NAAQS are achieved'' are not supported 
by any data. The Commenter asserts without any support that, in order 
to assure that the NAAQS are achieved, Pennsylvania should not exempt 
gas compressor stations engines less than 100 HP or gas extraction 
wells at landfills. However, the Commenter has not provided, and EPA is 
not aware of, any data indicating that, as a direct result of the 
exemption set forth at 25 Pa. Code section 127.14, there is an area of 
Pennsylvania that is not achieving any NAAQS at issue (the 1997 
PM2.5 NAAQS, 1997 ozone NAAQS and the 2006 PM2.5 
NAAQS). EPA has no data indicating that the emissions from the 
activities subject to the cited exemption are preventing Pennsylvania 
from achieving any NAAQS at issue. The Commenter has not provided 
sufficient information to support a conclusion that the cited exemption 
is ``inconsistent with the CAA.'' Furthermore, although the Commenter 
raises concerns about

[[Page 58957]]

ozone maintenance plans, which have been previously approved by EPA, 
the Commenter does not explain how such SIP approved maintenance plans 
relate to Pennsylvania's compliance with CAA 110(a)(2)(A) or (C) for 
the NAAQS at issue. Ozone maintenance plans are approved by EPA 
pursuant to CAA section 175A. These plans were subject to public notice 
and comment as part of EPA's approval process. The proper forum to 
raise concerns relating to such plans would have been during such 
public comment periods. These maintenance plans are not subject to 
review and comment during this agency action. EPA disagrees with any 
assertion that the SIP approved ozone maintenance plans referred to by 
the Commenter provide adequate justification for finding that 
Pennsylvania has failed to meet its obligations for the 1997 ozone and 
PM2.5 and 2006 PM2.5 NAAQS pursuant to CAA 
section 110(a)(2)(A) and (C).
    Pennsylvania's plan approval requirements for new sources or 
modifications at existing sources are included in its SIP. On July 30, 
1996, EPA approved Pennsylvania's Minor New Source Review (NSR) program 
into its SIP. See 61 FR 39597. The Commonwealth and EPA have relied on 
the existing state NSR program to assure that new and modified sources 
do not interfere with attainment and maintenance of the NAAQS. EPA has 
determined that Pennsylvania's minor NSR program adopted pursuant to 
CAA section 110(a)(2)(C) regulates emissions of PM2.5 and 
ozone and their precursors. For the 1997 PM2.5, 1997 ozone 
and 2006 PM2.5 NAAQS, Pennsylvania's NSR program meets the 
statutory requirement that a state include in its SIP ``a program to 
provide for the * * * regulation of the modification and construction 
of any stationary source within [Pennsylvania] as necessary to assure 
that the NAAQS are achieved.''
    In this action, EPA is approving Pennsylvania's infrastructure SIPs 
for the 1997 PM2.5 and ozone NAAQS and the 2006 
PM2.5 NAAQS with respect to the general requirement in 
section 110(a)(2)(C) to include a program in the SIP that regulates the 
modification and construction of any stationary source as necessary to 
assure that the NAAQS are achieved. Even in those situations where EPA 
has identified that a state's minor NSR provisions may be contrary to 
the existing EPA regulations, EPA has repeatedly taken the position 
that, as part of infrastructure SIP approvals, EPA is not proposing to 
approve or disapprove a state's existing minor NSR program itself to 
the extent that it is or may be inconsistent with EPA's regulations 
governing this program. EPA has indicated that it intends to work with 
states to reconcile state minor NSR programs with EPA's regulatory 
provisions for the program. EPA has taken this position because the 
statutory requirements of CAA 110(a)(2)(C) provide for considerable 
flexibility in designing minor NSR programs. The SIP provision cited by 
the Commenter (25 Pa. Code section 127.14) is not inconsistent with 
EPA's NSR regulatory provisions and is not inconsistent with the 
statutory requirements of section CAA 110(a)(2)(C). EPA believes that, 
while assuring reasonable consistency across the country in protecting 
the NAAQS with respect to new and modified minor sources, Pennsylvania 
should be given an appropriate level of flexibility to design a program 
that meets its particular air quality concerns. EPA will continue to 
monitor Pennsylvania's NSR program to ensure that this program 
regulates the modification and construction of any stationary source as 
necessary to assure that the NAAQS are achieved.
    Comment: The Commenter expresses concern that ``PADEP requires 
little to no monitoring or reporting for criteria and hazardous air 
pollutants associated with the drilling, extracting, and processing of 
natural gas from the Marcellus Shale'' and asserts that these alleged 
monitoring or reporting deficiencies are the result of PADEP's failure 
to aggregate sources in accordance with requirements in NSR, Prevention 
of Significant Deterioration (PSD), and Title V of the CAA. The 
Commenter refers to the September 22, 2009 Memo from Gina McCarthy, 
Assistant Administrator for the EPA's Office of Air and Radiation, 
``Withdrawal of Source Determinations for Oil and Gas Industries.'' The 
Commenter states that, as part of the Commenter's review of thirty plan 
approval files in 2011, it found only three aggregation analyses by 
PADEP and asserts that PADEP should conduct such analyses on every plan 
approval application.
    Response: The statutory requirement, CAA section 110(a)(2)(F), at 
issue as cited by the Commenter requires that each SIP for each NAAQS 
``require, as may be prescribed by the Administrator--(i) the 
installation, maintenance, and replacement of equipment, and the 
implementation of other necessary steps, by owners or operators of 
stationary sources to monitor emissions from such sources, (ii) 
periodic reports on the nature and amounts of emissions and emissions-
related data from such sources, and (iii) correlation of such reports 
by the State agency with any emissions limitations or standards 
established pursuant to this chapter, which reports shall be available 
at reasonable times for public inspection.'' See CAA section 
110(a)(2)(F). EPA disagrees with the Commenter's statements under 
section 110(a)(2)(F) which are related to source determinations under 
Pennsylvania's NSR, PSD and Title V programs. The narrow issue raised 
by the Commenter relates to implementation of Pennsylvania's Federally 
approved program. The issue raised goes beyond the basic statutory 
requirements of CAA section 110(a)(2)(F) that, as part of its SIP, the 
Commonwealth include certain general requirements. Pennsylvania 
incorporates by reference the Federal PSD regulations and has a SIP 
approved NSR program. Therefore, EPA believes there is no question that 
the Commonwealth meets this general statutory requirement. EPA's 
administrative record, including the TSD for this action, provides 
sufficient support for the finding that Pennsylvania's SIP for each of 
the relevant NAAQS meets the statutory requirement set forth at CAA 
section 110(a)(2)(F).
    Comment: The Commenter states that PADEP does not have enough 
personnel to properly implement its SIP. The Commenter relies upon an 
undated Clean Water Action report which summarizes the reduction in 
PADEP's overall budget during the period of 2000 through 2011. The 
Commenter also relies upon an April 13, 2011 local newspaper article 
reporting that four Pennsylvania environmental regulators indicated 
that they ``spend as little as 35 minutes reviewing each of the 
thousands of applications for natural gas well permits * * *''
    Response: EPA understands the concern that reductions in a state's 
budget may impede the state's ability to fulfill its obligations. 
However, a reduction in a state's budget allocated to environmental 
protection is by itself an insufficient basis for finding that a state 
has failed to meet its statutory obligations to ``provide (i) necessary 
assurances that the State * * * will have adequate personnel, funding, 
and authority under State law to carry out such implementation plan * * 
*'' See CAA section 110(a)(2)(E)(i). The administrative record for this 
action identifies several funding sources including Title V permit 
fees, federal funds under CAA sections 105 and 103 and funds from the 
Clean Air Fund and supports a finding that Pennsylvania has provided 
EPA with such assurances that it has adequate personnel and funding to 
carry out its SIP. If, in the

[[Page 58958]]

future, EPA determines that the Commonwealth does not have adequate 
personnel or funding to carry out its SIP, or for any other reason 
fails to meet any requirement of its approved SIP, then EPA may 
exercise its authority pursuant to CAA sections 110(a)(2)(E), 179 or 
110(k)(5). The action that EPA is taking today does not limit EPA's 
authority pursuant to those CAA sections.
    Comment: The Commenter expresses concern that ``PA DEP does not 
have an adequate plan to deal with the emergency situations associated 
with Marcellus Shale operations.'' The Commenter relies upon an 
Internet news article and its experience of receiving complaints from 
citizens living near natural gas operations.
    Response: EPA disagrees with the Commenter and believes 
Pennsylvania has met the requirements of CAA section 110(a)(2)(G). The 
Commenter raises a general concern regarding general emergency 
situations, including those situations unrelated to air quality. The 
TSD and administrative record supporting EPA's action support a finding 
that Pennsylvania has met its obligations to provide adequate 
contingency plans to implement authority comparable to that in CAA 
section 303, as required by CAA section 110(a)(2)(G). The TSD clearly 
sets forth the relevant statutory and regulatory emergency authority. 
Furthermore, the TSD sets forth how the Commonwealth followed EPA's 
September 25, 2009 guidance, entitled ``Guidance on SIP Elements 
Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine 
Particle (PM2.5) National Ambient Air Quality Standards 
(NAAQS)'' which provides EPA's interpretation of ``Prevention of Air 
Pollution Emergency Episodes'' rules at 40 CFR 51.150 and criteria for 
which states must develop emergency episode contingency plans. The 
Commenter does not assert that the Commonwealth has not met its 
statutory and regulatory obligations. Here, the Commenter seeks an 
expansion of the statutory and regulatory requirements relating 
specifically to adequate contingency plans for any type of emergency 
situation. However, the purpose of EPA's action is to determine whether 
the Commonwealth has met the basic infrastructure requirements of CAA 
section 110(a)(2) and related regulatory requirements. Therefore, there 
is no basis for finding that Pennsylvania's SIP fails to meet such 
requirements. Pennsylvania's SIP contains the requisite general 
emergency authority to address urgent air quality situations but is not 
required to have specific contingency plans for all situations and 
specifically does not require a plan for PM2.5 as per EPA 
guidance.
    Comment: The Commenter provides a summary of the requirements of 
CAA section 110(a)(2)(D)(i)(I) and (II). The remaining portion of the 
comment focuses upon concerns that emissions from ``Marcellus Shale 
operations'' may impact Pennsylvania and states adjacent to or downwind 
of Pennsylvania due to concerns relating to source determinations and 
ambient air quality monitoring. The Commenter claims ``[t]he proposed 
SIP fails to take into account the impact that Marcellus Shale 
operations are having on areas downwind from shale activity.''
    Response: This comment appears to address requirements of CAA 
section 110(a)(2)(D)(i)(I) and (II). As explained in the NPR (76 FR 
54410) and the TSD, EPA's action is limited to a determination of 
whether the Commonwealth has met its obligations pursuant to the 
portion of 110(a)(2)(D)(i)(II) relating to the part C permit program 
(or the PSD permit requirements). Therefore, any comment relating to 
additional requirements of CAA section 110(a)(2)(D)(i)(I) is not 
relevant to this action. With respect to the PSD requirements of CAA 
section 110(a)(2)(D)(i)(II), it is EPA's position that this sub-element 
may be met by a state's confirmation in an infrastructure SIP 
submission that new major sources and major modifications in the state 
are subject to PSD requirements consistent with the CAA. Pennsylvania 
has made this confirmation. Pennsylvania's SIP incorporates by 
reference all Federally enforceable PSD regulations for the NAAQS at 
issue.\1\ For Allegheny County, the PSD requirements have been 
addressed by an existing Federal Implementation Plan (FIP). The TSD and 
the administrative record clearly support a finding that Pennsylvania 
has met its statutory obligations to include adequate provisions 
prohibiting any source within Pennsylvania from emitting any air 
pollutant in amounts which will interfere with PSD measures required by 
any other state. The Commenter does not explain how any emissions from 
any source in Pennsylvania may interfere with another state's PSD SIP 
requirements. As explained above, Pennsylvania has met its statutory 
obligations relating to its PSD Program as required by CAA section 
110(a)(2)(D)(i)(II). Many of the CAA 110(a)(2) SIP elements, including 
section 110(a)(2)(D)(i), relate to the general information and 
authorities that constitute the ``infrastructure'' of a state's air 
quality management program. The CAA 110(a)(2) SIP submissions that EPA 
is acting upon are not required to address specific industry sources. 
Rather, these submissions are required to demonstrate the general 
statutory and regulatory infrastructure a state has to implement to 
meet the requirements of Subchapter I (Programs and Activities) of the 
CAA.
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    \1\ EPA notes that Pennsylvania's incorporation by reference of 
40 CFR 52.21 includes 40 CFR 51.21(k)(1) which provides that the 
``owner or operator of the proposed source or modification shall 
demonstrate that allowable emission increases from the proposed 
source or modification * * * would not cause or contribute to air 
pollution in violation of'' any NAAQS.
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    Comment: The Commenter generally asserts that EPA cannot fully 
approve Pennsylvania's infrastructure SIPs for several reasons. First, 
the Commenter generally asserts that the process was not sufficiently 
transparent because the NPR did not include all of the relevant 
information, including references to all relevant rules, EPA's analysis 
of such rules, and links to all relevant data that may be available on 
the Internet.
    Response: EPA disagrees with the Commenter. The Commenter is 
interested in transparency and interested in the Agency providing 
substantially more information in the Federal Register. The Commenter 
does not assert that the NPR in conjunction with the TSD and other 
materials in the docket for the proposals were inadequate to promote an 
appropriate public process on the Commonwealth's infrastructure SIP 
submittals. EPA believes that the NPR in conjunction with the 
information provided in the supporting administrative docket were 
adequate to allow the public an opportunity to review and comment on 
EPA's proposed action.
    The Commenter raises a procedural issue that is separate and 
distinct from the substantive issue addressed by EPA's proposed 
rulemaking which is whether the SIP submissions at issue meet the 
criteria of the portions of CAA section 110(a)(2) addressed in the NPR. 
The Commenter has not provided EPA with sufficient information 
supporting a finding that Pennsylvania has failed to meet any of its 
obligations pursuant to the portions of CAA section 110(a)(2) addressed 
in EPA's proposed action.
    As a general matter, the Commenter seems to interpret the EPA 
Administrator's goal of transparency as a mandate that all information 
for any EPA proposed administrative rulemaking must be set forth in the 
NPR itself, with no reliance on an administrative record. EPA 
appreciates the Commenter's interest in a ``one-stop-shop'' for all 
information (even tangential information) related to its

[[Page 58959]]

proposed action. However, the proposed interpretation of 
``transparent'' would be unduly burdensome and contrary to the 
requirements of the Administrative Procedures Act (APA), 5 U.S.C. 
533(b). EPA followed the APA and provided sufficient information to 
support its proposed administrative action and a public comment period 
on its proposed action. The documents contained in the docket provided 
numerous references to specific regulations and the Code of Federal 
Regulations. The docket also includes EPA's analysis of such rules 
relevant to this action along with relevant guidance and data. With 
respect to ``links to all relevant data that may be available on the 
Internet,'' EPA does not typically include detailed information when 
it's otherwise publicly available. With respect to analysis of data, 
there is no requirement that detailed technical information must be 
included in the NPR. EPA often includes a TSD as part of its 
administrative rulemaking actions. By including a TSD, in addition to 
the NPR, the public may more easily understand the basic action EPA is 
proposing to take and access more detailed information if desired. By 
making a TSD available on-line, by request, and as a hardcopy in the 
paper docket, EPA has made this important underlying technical 
information available to the public and has eliminated unnecessary 
costs associated with the overall rulemaking action. EPA's NPR and 
additional information contained in the docket for public review are in 
accordance with the APA and fulfill the Administrator's interest in 
transparency as well as Federal law requirements.
    Comment: The Commenter states that the CAA requires that the 
infrastructure SIPs include an adequate PSD permitting program needed 
to address CAA section 110(a)(2)(C), (D)(i)(II) and (J) and expresses 
concern that Pennsylvania's PSD program may not be ``approved'' if it 
lacks significant emission rates found in 40 CFR 52.21(b)(23)(i) [2011] 
and PM2.5 increments found in 40 CFR 52.21(c) [2011]. The 
Commenter states it is not clear whether the Pennsylvania PSD program 
incorporates by reference the version of the Code of Federal 
Regulations that existed at the time EPA approved Pennsylvania's PSD 
program into the SIP or automatically incorporates the current version 
of the Code of Federal Regulations. The Commenter requests that EPA 
either clarify that 25 Pa. Code Section 127.83 incorporates the most 
recent version of 40 CFR 52.21 automatically or, alternatively, the 
Commenter indicates that EPA cannot approve the Pennsylvania SIP for 
the 2006 PM2.5 NAAQS until the SIP is updated to incorporate 
the PM2.5 increments which were effective December 20, 2010.
    Response: EPA believes Pennsylvania has a PSD permitting program 
sufficient to meet the requirements in CAA section 110(a)(2)(C), 
(D)(i)(II) and (J). Pennsylvania has met the requirements for the 
PM2.5 NAAQS embodied in the PM2.5 NSR 
Implementation Rule (see 73 FR 28321 (May 16, 2008)), as well as the 
increment requirements of EPA's October 20, 2010 rulemaking (75 FR 
64864) by virtue of its incorporation by reference of 40 CFR 52.21 in 
its entirety. EPA's approval of 25 Pa. Code Section 127.83 on August 
21, 1984 (49 FR 33127) explains that Pennsylvania's incorporation by 
reference of 40 CFR 52.21 does not identify a specific edition of 40 
CFR 52.21 and that all future changes thereto would automatically be 
incorporated by reference. Therefore, Pennsylvania's SIP approved PSD 
program clearly includes the Federal regulations identified by the 
Commenter.
    Comment: The Commenter states that EPA cannot approve 
Pennsylvania's SIP with regard to CAA section 110(a)(2)(G). The 
Commenter states that the NPR and TSD give no indication that 
Pennsylvania has adopted emergency episode plans. The Commenter 
references the portion of EPA's September 25, 2009 guidance entitled 
``Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) 
for the 2006 24-Hour Fine Particle (PM2.5) National Ambient 
Air Quality Standard (NAAQS)'' which states that states have to 
establish their own priority action levels and emergency action levels 
for PM2.5 ``through their public processes.''
    Response: EPA disagrees with the Commenter's view that 
Pennsylvania's infrastructure SIP submission is not consistent with CAA 
section 110(a)(2)(G) with respect to the 1997 and 2006 PM2.5 
NAAQS. As the Commenter noted, EPA has not amended the regulations of 
40 CFR 51.151 to include a significant harm level or priority cut point 
for PM2.5. In the absence of such regulations, EPA issued 
guidance to states to recommend how they could comply with CAA section 
110(a)(2)(G). Also, although the regulations have not changed, a state 
still needs to meet the statutory requirement, and EPA provided an 
approach states could use to meet the requirements. The Commenter 
refers to the September 25, 2009 ``Guidance on SIP Elements Required 
Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle 
(PM2.5) National Ambient Air Quality Standard (NAAQS).'' 
This document is part of the docket supporting the proposed action and 
is the document that indicates the approach a state could take to meet 
the requirement. This document may be found in hard copy in the paper 
docket file and in the electronic docket at Document ID Number EPA-RO3-
0AR-2010-0159-0008. The Commenter refers to a portion of this guidance, 
but fails to include other relevant portions of this guidance. The 
relevant portion of this guidance recommends:

    To address the section 110(a)(2)(G) element, states with air 
quality control regions identified as either Priority I, Priority 
IA, or Priority II by the ``Prevention of Air Pollution Emergency 
Episodes'' rules at 40 CFR 51.150, must develop emergency episode 
contingency plans. Currently, those regulations do not specifically 
address PM2.5 * * * [F]or the purposes of satisfying the 
requirements of section 110(a)(2)(G), states would develop emergency 
episode plans for any area that has monitored and recorded 24-hour 
PM2.5 levels greater than 140.4 ug/m\3\ since 2006V If 
this level was never exceeded in any area of the state, the state 
can certify that it has appropriate general emergency powers to 
address PM2.5 related episodes, and that no specific 
emergency episode plans are necessary at this time, given the 
existing monitored levels. States should develop submissions to meet 
this requirement through appropriate public processes.

    In accordance with this guidance, Pennsylvania submitted a SIP 
revision addressing the contingency plan portion of CAA section 
110(a)(2)(G) for both the 1997 and 2006 PM2.5 NAAQS on April 
26, 2010. This submittal states in relevant part, ``For both the 2006 
and 1997 PM2.5 NAAQS, no specific emergency episode plans 
are necessary given that existing monitored levels have not exceeded 
the level of 140.4 micrograms per cubic meter (ug/m\3\) identified by 
EPA in its September 25, 2009 ``Guidance on SIP Elements Required Under 
Sections 110(a)(1) and (2) for the 2006 24-hour Fine Particle 
(PM2.5) National Ambient Air Quality Standards (NAAQS), pp. 
6-7.'' This submittal was subject to the appropriate public processes. 
The transmittal letter states that the ``public participation process 
for this SIP revision included a 30 day written comment period and an 
opportunity for public hearing * * * The DEP did not receive any 
comments during the public comment period.'' This letter from 
Pennsylvania is contained in the docket with Document ID Number EPA-
RO3-0AR-2010-0159-0003. A copy of the April 26, 2010 SIP submittal and 
the notices of opportunity for public comments are included as 
attachments to the electronic copy of the document identified above 
(EPA-R03-

[[Page 58960]]

OAR-2010-0159-0003). Pennsylvania's submittals identified in the 
electronic docket with Docket ID Number EPA-R03-OAR-2010-0159 meet the 
requirements in the EPA's guidance document that the Commenter 
references. Based upon such submittals, Pennsylvania has submitted 
sufficient information to support a finding that the monitored data 
throughout the Commonwealth of Pennsylvania from 2006 through April 
2010 have not exceeded 140.4 ug/m\3\. Accordingly, EPA has concluded 
that Pennsylvania's infrastructure SIPs are consistent with the 
requirements of CAA section 110(a)(2)(G).
    Comment: The Commenter seeks EPA's review of Pennsylvania's ambient 
air quality monitoring data for the limited purpose of determining 
whether Pennsylvania is accurately asserting that it has not monitored 
any PM2.5 readings above 140.4 ug/m\3\.
    Response: EPA agrees that the Agency as a matter of general 
practice should review state monitoring data in conjunction with its 
review of a state's assertions relating to such data. A state is 
required to certify all air monitoring data on a yearly basis (see 40 
CFR 58.15) and EPA reviews this data each year. EPA has reviewed 
Pennsylvania's certified ambient air quality monitoring data and as 
part of that independent review has determined that Pennsylvania's 
assertion is correct. Pennsylvania's highest PM2.5 reading 
since 2006 was at Liberty, PA. The sampled value occurred in 2006 and 
was 100.7 ug/m\3\. The relevant monitoring data is also accessible to 
the public at various web sites including http://www.epa.gov/airdata. 
Based upon its review of Pennsylvania's ambient air quality monitoring 
data since 2006, EPA has determined that Pennsylvania has correctly 
indicated that it has not monitored any 24 hour PM2.5 
readings above 140.4 ug/m\3\.
    Comment: The Commenter raises two issues related to the definitions 
provided in 25 Pa. Code Section 121.1. The Commenter states that with 
regard to ozone, the definitions of marginal, serious, and severe ozone 
nonattainment areas in the SIP approved version of 25 Pa. Code Section 
121.1 are based on 1-hour ozone NAAQS rather than the 1997 8-hour ozone 
NAAQS and that these definitions need to be updated. Also, the 
Commenter states that there is no definition of PM2.5 in 25 
Pa. Code Section 121.1 and that Pennsylvania needs one.
    Response: EPA agrees that as a general matter the absence or 
inadequacy of definitions could be relevant to review of a SIP 
submittal pursuant to CAA section 110(a)(2), however, EPA disagrees 
that the specific issues raised by the Commenter support a finding that 
the SIPs at issue fail to meet the applicable 110(a)(2) requirements. 
EPA has considered the concerns raised by the Commenter and finds that 
the Commenter has not identified a defect in the SIP approved version 
of 25 Pa. Code Section 121.1 that, in and of itself, is sufficient to 
support a finding that Pennsylvania has not met its obligations 
pursuant to the portions of section 110(a)(2) addressed herein. The SIP 
submissions at issue which EPA is approving do not directly address and 
do not modify the definitions set forth in 25 Pa. Code Section 121.1. 
Therefore, these specific definitions are not directly a part of this 
rulemaking. Furthermore, the statutory provisions at issue do not 
expressly set criteria for the state regulatory definition provisions. 
The Commenter has not explained how the issues raised relating to 
specific definitions relate to Pennsylvania's compliance with its 
obligations pursuant to the portions of CAA section 110(a)(2) at issue 
in this rulemaking. EPA disagrees with the Commenter concerning the 
ozone classification definitions because these terms are not directly 
relevant to the issues germane to the infrastructure SIP action. The 
definitions relating to ozone nonattainment areas may be relevant to 
Pennsylvania's compliance with CAA section 110(a)(2)(I). However, as 
indicated in EPA's NPR, the SIP submittals at issue do not pertain to 
CAA section 110(a)(2)(I) and EPA's action does not pertain to the 
applicable requirements of CAA Chapter I, part D (relating to 
nonattainment areas). These requirements, and issues pertaining only to 
nonattainment areas for a specific NAAQS, are not required to be 
addressed on the same schedule as issues pertaining to other general 
requirements of CAA section 110(a)(1) and 110(a)(2). Therefore, this 
comment is not relevant to EPA's action and EPA does not have any 
obligation to respond to such comments. EPA disagrees with the 
Commenter concerning the PM2.5 definition issue because the 
Pennsylvania SIP currently includes a definition of the 
PM2.5 NAAQS. Section 121.1 defines the term NAAQS as 
National Ambient Air Quality Standards. In accordance with 25 Pa. Code 
section 131.2, as EPA promulgates new or revised NAAQS, Pennsylvania 
incorporates the NAAQS by reference. Therefore, the Pennsylvania SIP 
provides a definition of the PM2.5 NAAQS that is consistent 
with the CAA. As a related matter, Pennsylvania recently revised its 
nonattainment NSR rules. Section 121.1 contains a specific entry for 
PM2.5 which states ``PM2.5--Particulate matter 
with an aerodynamic diameter of less than or equal to a nominal 2.5 
micrometer body as measured by the applicable reference method or an 
equivalent method.'' These revised rules were subject to public comment 
and became effective on September 3, 2011. Pennsylvania submitted these 
NSR revisions including, but not limited to, 25 Pa. Code Section 121.1 
to EPA for inclusion into the SIP on September 23, 2011, and EPA 
approved this revision on July 13, 2012. (See 77 FR 41276).

IV. Final Action

    EPA is approving the Commonwealth of Pennsylvania's submittals that 
provide the infrastructure elements specified in CAA section 
110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and 
(M), or portions thereof, necessary to implement, maintain, and enforce 
the 1997 8-hour ozone and PM2.5 NAAQS and the 2006 
PM2.5 NAAQS. EPA made completeness findings for the 1997 8-
hour ozone NAAQS on March 27, 2008 (73 FR 16205) and on October 22, 
2008 (73 FR 62902) for the 1997 PM2.5 NAAQS. These findings 
pertained only to whether the submissions were complete, pursuant to 
CAA section 110(k)(1)(A), and did not constitute EPA approval or 
disapproval of such submissions. For the geographic area of Allegheny 
County, the completeness finding of March 27, 2008 (73 FR 16205) noted 
Pennsylvania's failure to submit a SIP revision addressing the portion 
of 110(a)(2)(C) relating to the Part C permit programs for the 1997 
ozone NAAQS. EPA recognized that such requirement has already been 
addressed by a FIP that remains in place, and concluded that the 
finding of incompleteness would not trigger any additional FIP 
obligation for Pennsylvania. For all other areas of Pennsylvania, 
except for Allegheny County, EPA found that the Commonwealth had a SIP 
approved PSD program in place and found that the CAA section 110(a)(2) 
submittals at issue were complete.
    Two elements identified in CAA section 110(a)(2) are not governed 
by the three year submission deadline of CAA section 110(a)(1) because 
SIPs incorporating necessary local nonattainment area controls are not 
due within three years after promulgation of a new or revised NAAQS, 
but rather are due at the time the nonattainment area plan requirements 
are due pursuant to CAA section 172. These elements are: (i) 
Submissions required by section

[[Page 58961]]

110(a)(2)(C) to the extent that the subsection pertains to a permit 
program in Part D Title I of the CAA; and (ii) any submissions required 
by section 110(a)(2)(I) which pertains to the nonattainment planning 
requirements of Part D Title I of the CAA. This action does not cover 
these specific elements. This action also does not address the 
requirements of 110(a)(2)(D)(i)(I) for the 1997 8-hour ozone and 
PM2.5 NAAQS, and the 2006 PM2.5 NAAQS.

V. Statutory and Executive Order Reviews

A. General Requirements

    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 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 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 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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by November 26, 2012. 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, and shall not postpone the effectiveness of such rule or 
action.
    This action pertaining to Pennsylvania's section 110(a)(2) 
infrastructure requirements for the 1997 8-hour ozone and 
PM2.5 NAAQS and the 2006 PM2.5 NAAQS 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, Volatile organic compounds.

    Dated: September 7, 2012.
W.C. Early,
Acting Regional Administrator, Region III.
    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 (e)(1) is amended by adding 
entries at the end of the table for Section 110(a)(2) Infrastructure 
Requirements for the 1997 8-Hour Ozone NAAQS, Section 110(a)(2) 
Infrastructure Requirements for the 1997 PM2.5 NAAQS, and 
Section 110(a)(2) Infrastructure Requirements for the 2006 
PM2.5 NAAQS. The amendments read as follows:


Sec.  52.2020  Identification of plan.

* * * * *
    (e) * * *
    (1) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
    Name of  non-regulatory SIP           Applicable
             revision                  geographic area               State submittal date               EPA Approval date        Additional explanation
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Section 110(a)(2) Infrastructure    Statewide............  12/7/07, 6/6/08........................  9-25-12 [Insert page       This action addresses the
 Requirements for the 1997 8-Hour                                                                    number where the           following CAA elements
 Ozone NAAQS.                                                                                        document begins].          or portions thereof:
                                                                                                                                110(a)(2)(A), (B), (C),
                                                                                                                                (D), (E), (F), (G), (H),
                                                                                                                                (J), (K), (L), and (M).

[[Page 58962]]

 
Section 110(a)(2) Infrastructure    Statewide............  12/7/07, 6/6/08, 4/26/10...............  9-25-12 [Insert page       This action addresses the
 Requirements for the 1997 PM2.5                                                                     number where the           following CAA elements
 NAAQS.                                                                                              document begins].          or portions thereof:
                                                                                                                                110(a)(2)(A), (B), (C),
                                                                                                                                (D), (E), (F), (G), (H),
                                                                                                                                (J), (K), (L), and (M).
Section 110(a)(2) Infrastructure    Statewide............  4/26/10, 5/24/11.......................  9-25-12 [Insert page       This action addresses the
 Requirements for the 2006 PM2.5                                                                     number where the           following CAA elements
 NAAQS.                                                                                              document begins].          or portions thereof:
                                                                                                                                110(a)(2)(A), (B), (C),
                                                                                                                                (D), E), (F), (G), (H),
                                                                                                                                (J), (K), (L), and (M).
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2012-23497 Filed 9-24-12; 8:45 am]
BILLING CODE 6560-50-P