[Federal Register Volume 78, Number 240 (Friday, December 13, 2013)]
[Rules and Regulations]
[Pages 75902-75904]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-29588]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2008-0603; FRL-9904-12-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; Philadelphia County Reasonably Available Control 
Technology Under the 1997 8-Hour Ozone National Ambient Air Quality 
Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is conditionally 
approving two State Implementation Plan (SIP) revisions for the 
Commonwealth of Pennsylvania. The SIP revisions consist of a 
demonstration that Philadelphia County is meeting the requirements of 
reasonably available control technology (RACT) of the Clean Air Act 
(CAA) for nitrogen oxides (NOX) and volatile organic 
compounds (VOC) under the 1997 8-hour ozone national ambient air 
quality standard (NAAQS). EPA's conditional approval of Philadelphia 
County's 1997 8-hour ozone RACT demonstration is based on Philadelphia 
County's commitment to submit additional SIP revisions addressing 
source-specific RACT controls for major sources of VOC and 
NOX in the County. This action is being taken under the CAA.

DATES: This final rule is effective on January 13, 2014.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2008-0603. All documents in the electronic docket 
are listed in the www.regulations.gov Web page. Although listed in the 
index, 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 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 Department of Public Health, Air Management Services, 
321 University Avenue, Philadelphia, Pennsylvania 19104. Copies are 
also available at Pennsylvania Department of Environmental Protection, 
Bureau of Air Quality Control, P.O. Box 8468, 400 Market Street, 
Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Emlyn V[eacute]lez-Rosa, (215) 814-
2038, or by email at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On June 19, 2013 (78 FR 36716), EPA published a notice of proposed 
rulemaking (NPR) for the Commonwealth of Pennsylvania. In the NPR, EPA 
proposed conditional approval of Philadelphia County's SIP revisions 
addressing the RACT requirements under the 1997 8-hour ozone NAAQS. The 
formal SIP revisions were submitted by the Pennsylvania Department of 
Environmental Protection (PADEP) on behalf of Philadelphia Air 
Management Services (AMS) on September 29, 2006 and June 22, 2010 
(hereafter the 2006 SIP revision and the 2010 SIP revision, 
respectively).
    On November 29, 2005, EPA published an ozone implementation rule to 
address nonattainment SIP requirements for the 1997 8-hour ozone NAAQS 
(the Phase 2 Ozone Implementation Rule). See (70 FR 71612 (November, 
29, 2005). In the Phase 2 Ozone Implementation Rule, EPA required that 
states meet the RACT requirements under the 1997 8-hour ozone NAAQS, 
either through a certification that previously adopted RACT controls in 
their SIP approved by EPA under the 1-hour ozone NAAQS continue to 
represent adequate RACT control levels for 8-hour ozone attainment 
purposes, or through the adoption of new or more stringent regulations 
that represent RACT control levels. See 70 FR 71655.
    However, the Court of Appeals for the District of Columbia Circuit 
subsequently held that a particular provision in the Phase 2 Ozone 
Implementation Rule, which allowed the NOX SIP call, a cap-
and-trade program for NOX, to substitute as RACT for 
electric generating units (EGUs) for the 1997 ozone NAAQS, was 
inconsistent with the statutory requirements of section 172(c)(1) of 
the CAA and remanded that provision of the rule to EPA. See NRDC v. 
EPA, 571 F.3d 1245 (D.C. Cir. 2009). Since the Philadelphia County 2006 
SIP revision relies on the NOX SIP Call to meet the 
NOX RACT requirements for EGUs and it does not specifically 
and sufficiently address the source-specific RACT determinations for 46 
major sources that were previously approved under the 1-hour ozone 
standard, EPA determined that it cannot proceed with the final approval 
of this SIP revision, as proposed on August 26, 2008 (73 FR 50270) and 
on June 19, 2013 (78 FR 36716), withdrew the August 26, 2008 proposed 
rulemaking action to approve the 2006 SIP revision.

II. Summary of SIP Revisions

    On September 29, 2006, PADEP submitted on behalf of AMS a SIP 
revision for Philadelphia County to meet the RACT requirements for the 
1997 8-hour ozone NAAQS. The 2006 SIP revision consists of a RACT 
demonstration for Philadelphia County for NOX and VOC, and 
includes: (1) A certification that previously adopted RACT controls in 
Pennsylvania's SIP that were approved by EPA for Philadelphia County 
under the 1-hour ozone NAAQS are based on the currently available 
technically and economically feasible controls and continue to 
represent RACT for the 8-hour implementation purposes; (2) the adoption 
of Federally enforceable permits that represent RACT control levels for 
four major VOC sources; and (3) a negative declaration that certain VOC 
sources do not exist in Philadelphia County.
    On June 22, 2010, PADEP submitted another SIP revision addressing 
Philadelphia County's RACT requirements under the 1997 8-hour ozone 
standard. The 2010 SIP revision consists of: (1) The adoption of two 
regulations to meet control technique guideline (CTG) RACT 
requirements; and (2) a negative declaration for a particular CTG 
source category. The 2010 SIP revision supersedes portions of the 2006 
SIP revision addressing specific CTG RACT requirements.
    Finally, on April 26, 2013, PADEP submitted on behalf of AMS a 
letter committing to submit additional SIP revisions to address source-
specific RACT controls under the 1997 8-hour ozone standard for 
Philadelphia County pursuant to section 110(k)(4) of the CAA. 
Additional details on the SIP revisions are included in the NPR and 
will not be restated here. No public comments were received on the NPR 
for this action.

[[Page 75903]]

III. EPA's Rationale for Conditional Approval

    In light of the DC Circuit decision in NRDC v. EPA regarding 
requirements in the Phase 2 Ozone Implementation Rule, EPA determined 
it could not approve the presumption in the 2006 SIP submittal that the 
NOX SIP Call constitutes RACT for EGU sources in 
Philadelphia County. Thus, AMS needs to perform a NOX RACT 
analysis for EGUs as provided in the April 26, 2013 commitment letter 
from PADEP for AMS. EPA also determined that the 2006 SIP revision does 
not specifically and sufficiently address whether the source-specific 
RACT controls for 46 major sources in Philadelphia County that were 
previously approved in the Pennsylvania SIP under the 1-hour ozone 
NAAQS continue to represent RACT for the 1997 8-hour ozone NAAQS. 
Therefore, to satisfy the major source RACT requirement for the 1997 8-
hour ozone NAAQS, AMS must either: (1) Provide a certification that 
previously adopted source-specific RACT controls approved by EPA in 
Pennsylvania's SIP under the 1-hour ozone NAAQS for major sources in 
Philadelphia County (as listed in 40 CFR 52.2020(d)(1)) continue to 
represent adequately RACT for the 1997 8-hour ozone NAAQS; or (2) 
perform a source-specific RACT analysis for each source for which 
controls do not currently and adequately represent RACT for the 1997 8-
hour ozone NAAQS.
    In this rulemaking action, EPA is conditionally approving 
Philadelphia County's 1997 8-hour ozone RACT demonstration provided in 
the 2006 and 2010 SIP revisions, based upon the commitment from AMS in 
the April 26, 2013 letter from PADEP to submit additional SIP revisions 
to address the deficiencies in the current RACT demonstration for 
Philadelphia County. The SIP revisions, to be submitted by PADEP on 
behalf of AMS no later than twelve months from today's final 
conditional approval, will address source-specific RACT determinations 
for the following major sources in Philadelphia County: (1) Exelon--
Delaware Station; (2) Exelon--Richmond Station; (3) Exelon--Schuylkill 
Station; (4) Veolia--Edison Station (formerly Trigen- Edison Station); 
(5) Veolia--Schuylkill Station (formerly Trigen--Schuylkill Station); 
(6) Philadelphia Energy Solutions Refinery (formerly Sunoco Refinery); 
(7) Kraft Nabisco (formerly Nabisco Biscuit Company); (8) Temple 
University, Health Sciences Center; (9) GATX Terminals Corporation; and 
(10) Honeywell (formerly Sunoco Chemicals, Frankford Plant). The SIP 
revisions to be submitted will also include a certification that 
previously adopted source-specific RACT controls approved by EPA in 
Pennsylvania's SIP for the 1-hour ozone NAAQS for the remaining sources 
in Philadelphia County continue to represent adequately RACT for the 
1997 8-hour ozone NAAQS.

IV. Final Action

    In this rulemaking action, EPA is conditionally approving 
Philadelphia County's RACT demonstration under the 1997 8-hour ozone 
NAAQS, as provided in the 2006 and the 2010 SIP revisions. Pursuant to 
section 110(k)(4) of the CAA, this conditional approval is based upon 
the April 26, 2013 letter from PADEP for AMS committing to submit to 
EPA, no later than twelve months from today's final conditional 
approval, additional SIP revisions to address the deficiencies in the 
current RACT demonstration for Philadelphia County. The SIP revisions 
will provide source-specific RACT determinations for 10 major sources 
of VOC and NOX in Philadelphia County and a certification 
that previously adopted source-specific RACT controls approved by EPA 
in Pennsylvania's SIP for the 1-hour ozone NAAQS for the remaining 
sources in Philadelphia County continue to adequately represent RACT 
for the 1997 8-hour ozone NAAQS. Once EPA has determined that AMS has 
satisfied this condition, EPA shall remove the conditional nature of 
this approval and Philadelphia County's 1997 8-hour ozone RACT 
demonstration will, at that time, receive a full approval status. 
Should AMS fail to meet the condition specified above, today's final 
conditional approval of Philadelphia County's 1997 8-hour ozone RACT 
demonstration will convert to a disapproval.

V. 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 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

[[Page 75904]]

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 February 11, 2014. 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 [add language that is unique to this action] 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, Reporting and recordkeeping 
requirements, Volatile organic compounds.

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

    Dated: November 29, 2013.
 W.C. Early,
Acting Regional Administrator, Region III.
    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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 
an entry for ``RACT under the 1997 8-hour ozone NAAQS'' for 
Philadelphia County at the end of the table. The added text reads as 
follows:


Sec.  52.2020  Identification of plan.

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

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    Name of non-regulatory SIP          Applicable           State                                Additional
             revision                geographic area    submittal date   EPA Approval date       explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
RACT under the 1997 8-hour ozone   Philadelphia County         9/29/06  12/13/13 [Insert     Conditional
 NAAQS.                                                        6/22/10   page number where    approval. See Sec.
                                                                         the document           52.2023(l).
                                                                         begins].
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0
3. Section 52.2023 is amended by adding paragraph (l) to read as 
follows:


Sec.  52.2023  Approval status.

* * * * *
    (l) EPA conditionally approves Philadelphia County's reasonably 
available control technology (RACT) demonstration under the 1997 8-hour 
ozone NAAQS, as provided in SIP revisions submitted on September 29, 
2006 and June 22, 2010. Pursuant to section 110(k)(4) of the CAA, this 
conditional approval is based upon an April 26, 2013 letter from 
Pennsylvania on behalf of Philadelphia County committing to submit to 
EPA, no later than twelve months from EPA's final conditional approval, 
additional SIP revisions to address the deficiencies in the current 
RACT demonstration for Philadelphia County. The SIP revisions, to be 
submitted by Pennsylvania on behalf of Philadelphia County, will 
address source-specific RACT determinations for ten (10) major sources 
in Philadelphia County and will include a certification that previously 
adopted source-specific RACT controls approved by EPA in Pennsylvania's 
SIP under the 1-hour ozone NAAQS for the remaining sources in 
Philadelphia County (as listed in 40 CFR 52.2020(d)(1)) continue to 
adequately represent RACT for the 1997 8-hour ozone NAAQS.

[FR Doc. 2013-29588 Filed 12-12-13; 8:45 am]
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