[Federal Register Volume 79, Number 242 (Wednesday, December 17, 2014)]
[Proposed Rules]
[Pages 75104-75107]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-29579]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2013-0636; FRL-9920-51-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; Revision to Allegheny County Rules; Preconstruction 
Permit Requirements--Nonattainment New Source Review

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
grant full approval for the revisions to the Commonwealth of 
Pennsylvania State Implementation Plan (SIP) submitted on June 25, 2012 
by the Pennsylvania Department of Environmental Protection (PADEP) on 
behalf of the Allegheny County Health Department (ACHD). These 
revisions pertain to ACHD's Nonattainment New Source Review (NNSR) 
program, and implement an incorporation by reference (IBR) of 
Pennsylvania's NNSR provisions. They also correct a citation error in 
ACHD's NNSR regulations. This action is in accordance with the 
requirements of the Clean Air Act (CAA).

DATES: Written comments must be received on or before January 16, 2015.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2013-0636 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. Email: [email protected].
    C. Mail: EPA-R03-OAR-2013-0636, Mr. Andrew Kreider, 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-
2013-0636. 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 from the Pennsylvania Department of Environmental 
Protection, Bureau of Air Quality Control, P.O. Box 8468, 400 Market 
Street, Harrisburg, Pennsylvania 17105; and Allegheny County Health 
Department, Bureau of Environmental Quality, Division of Air Quality, 
301 39th Street, Pittsburgh, Pennsylvania 15201.

FOR FURTHER INFORMATION CONTACT: Mr. Paul T. Wentworth, (215) 814-2183, 
or by email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On June 25, 2012, PADEP submitted a formal revision to its State 
Implementation Plan (SIP) (the June 2012 SIP submittal) which revises 
ACHD's NNSR program. By letter dated June 27, 2014, PADEP modified the 
June 2012 SIP revision, by withdrawing specific language from the June 
2012 SIP submittal. The withdrawn language related to a proposed 
process for automatically incorporating additions, revisions, or 
deletions to PADEP's NNSR regulations into ACHD's SIP effective on the 
date of such PADEP NNSR regulation revision. As a result of PADEP's 
June 27, 2014 letter, the language withdrawn by PADEP from the June 25, 
2012 SIP submission is not being considered as part of this rulemaking 
action. The remainder of the SIP revision is the subject of this 
rulemaking action and consists of amendments to ACHD's major NNSR 
permitting regulations under Article XXI of ACHD's Rules and 
Regulations. The June 2012 SIP submittal includes amendments to the 
following sections of ACHD's Rules and Regulations, Article XXI: 
Section 2102.20 (Definitions); 2102.04 (Installation permits); section 
2102.06 (Major sources Locating in or Impacting a Nonattainment Area); 
and, section 2102.08 (Emissions Offset Registration). As discussed in 
greater detail in this proposal, the June 2012 SIP submittal includes 
revisions to ACHD's nonattainment NSR program which are consistent with 
currently promulgated federal NSR regulations and with NSR regulations 
which EPA has previously approved into Pennsylvania's SIP.
    Generally, the June 2012 SIP revision incorporates provisions 
related to two Federal rulemaking actions: (a) The 2002 ``Prevention of 
Significant Deterioration (PSD) and Nonattainment NSR (NSR): Baseline 
Emissions Determination, Actual-to-Future-Actual

[[Page 75105]]

Methodology, Plantwide Applicability Limitations, Clean Units, 
Pollution Control Projects'' (2002 NSR Reform Rules), see 67 FR 80186, 
December 31, 2002, and (b) the 2008 ``Implementation of the New Source 
Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers 
(PM2.5)'' (2008 NSR PM2.5 Rule), see 73 FR 28321, 
May 16, 2008.
    The 2002 NSR Reform Rules made changes to five areas of the NSR 
programs. In summary, these rules: (1) Provided a new method for 
determining baseline actual emissions; (2) adopted an actual-to-
projected-actual methodology for determining whether a major 
modification has occurred; (3) allowed major stationary sources to 
comply with a Plantwide Applicability Limit (PAL) to avoid having a 
significant emissions increase that triggers the requirements of the 
major NSR program; (4) provided a new applicability provision for 
emissions units that are designated clean units; and, (5) excluded 
pollution control projects (PCPs) from the definition of ``physical 
change or change in the method of operation.'' On November 7, 2003, EPA 
published a notice of final action on its reconsideration of the 2002 
NSR Reform Rules,\1\ which added a definition for ``replacement unit'' 
and clarified an issue regarding PALs. For additional information on 
the 2002 NSR Reform Rules, see: (a) EPA's December 31, 2002 final 
rulemaking action entitled: ``Prevention of Significant Deterioration 
(PSD) and Nonattainment NSR (NSR): Baseline Emissions Determination, 
Actual-to-Future-Actual Methodology, Plantwide Applicability 
Limitations, Clean Units, Pollution Control Projects'' (67 FR 80186), 
(b) the 2003 final reconsideration: ``Prevention of Significant 
Deterioration (PSD) and Non-Attainment New Source Review (NSR): 
Reconsideration'' (68 FR 63021), and (c) the following Web site: http://www.epa.gov/nsr.
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    \1\ See, ``Prevention of Significant Deterioration (PSD) and 
Non-Attainment New Source Review (NSR): Reconsideration;'' (68 FR 
63021).
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    After the 2002 NSR Reform Rules were finalized and effective (March 
3, 2003), industry, state, and environmental petitioners challenged 
numerous aspects of the 2002 NSR Reform Rules, along with portions of 
EPA's 1980 NSR Rules (45 FR 52676, August 7, 1980). On June 24, 2005, 
the United States Court of Appeals for the District of Columbia (DC 
Circuit) issued a decision on the challenges to the 2002 NSR Reform 
Rules. New York v. United States, 413 F.3d 3 (New York I).
    In summary, the DC Circuit vacated portions of the rules pertaining 
to clean units and PCPs, remanded a portion of the rules regarding 
recordkeeping and the term ``reasonable possibility'' found in 40 CFR 
52.21(r)(6) and 40 CFR 51.166(r)(6), and either upheld or did not 
comment on the other provisions included as part of the 2002 NSR Reform 
Rules. On June 13, 2007 (72 FR 32526), EPA took final action to revise 
the 2002 NSR Reform Rules to remove from federal law all provisions 
pertaining to clean units and the PCP exemption that were vacated by 
the DC Circuit.
    The 2008 NSR PM2.5 Rule (as well as the 2007 ``Final 
Clean Air Fine Particle Implementation Rule'' (2007 PM2.5 
Implementation Rule) \2\), was also the subject of litigation before 
the DC Circuit in Natural Resources Defense Council v. EPA (DC Circuit 
Court decision).\3\ On January 4, 2013, the court remanded to EPA both 
the 2007 PM2.5 Implementation Rule and the 2008 NSR 
PM2.5 Rule. The court found that in both rules EPA erred in 
implementing the 1997 PM2.5 NAAQS solely pursuant to the 
general implementation provisions of subpart 1 of part D of title I of 
the CAA (subpart 1), rather than pursuant to the additional 
implementation provisions specific to particulate matter in subpart 4 
of part D of title I (subpart 4).\4\ As a result, the court remanded 
both rules and instructed EPA ``to re-promulgate these rules pursuant 
to subpart 4 consistent with this opinion.'' Although the DC Circuit 
declined to establish a deadline for EPA's response, EPA intends to 
respond promptly to the court's remand and to promulgate new generally 
applicable implementation regulations for the PM2.5 NAAQS in 
accordance with the requirements of subpart 4. In the interim, however, 
states and EPA still need to proceed with implementation of the 1997 
PM2.5 NAAQS in a timely and effective fashion in order to 
meet statutory obligations under the CAA and to assure the protection 
of public health intended by those NAAQS.
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    \2\ 72 FR 20586 (April 25, 2007)
    \3\ 706 F.3d 428 (D.C. Cir. 2013)
    \4\ The court's opinion did not specifically address the point 
that implementation under subpart 4 requirements would still require 
consideration of subpart 1 requirements, to the extent that subpart 
4 did not override subpart 1. EPA assumes that the court presumed 
that EPA would address this issue of potential overlap between 
subpart 1 and subpart 4 requirements in subsequent actions.
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    As part of its response to the January 4, 2013 DC Circuit Court of 
Appeals Order, EPA issued a final rulemaking entitled ``Identification 
of Nonattainment Classification and Deadlines for Submission of State 
Implementation Plan (SIP) Provisions for the 1997 Fine Particle 
(PM2.5) National Ambient Air Quality Standard (NAAQS) and 
2006 PM2.5 NAAQS; Final Rule,'' (79 FR 31566, June 2, 2014). 
See http://www.epa.gov/airquality/particlepollution/actions.html. This 
rule classified all existing PM2.5 nonattainment areas as 
``Moderate'' nonattainment areas and set a deadline of December 31, 
2014, for states to submit any SIP submissions, including nonattainment 
NSR SIPs that may be necessary to satisfy the requirements of subpart 4 
with respect to PM2.5 nonattainment areas. The existing 
PM2.5 nonattainment areas addressed by this rule included 
the Liberty-Clairton and Pittsburgh nonattainment areas, portions of 
which are regulated by ACHD and, therefore, subject to the regulatory 
revisions being proposed for approval in this action. See 79 FR 31566 
(June 2, 2014). EPA is continuing to evaluate the requirements of 
subpart 4 as they pertain to, among other things, nonattainment NSR for 
PM2.5 emissions.
    Additionally, the 2008 NSR PM2.5 Rule authorized states 
to adopt provisions in their nonattainment NSR rules that would allow 
major stationary sources locating in areas designated nonattainment for 
PM2.5, and major modifications at stationary sources located 
in areas designated nonattainment for PM2.5, to offset 
emissions increases of direct PM2.5 emissions or 
PM2.5 precursors with reductions of either direct 
PM2.5 emissions or PM2.5 precursors in accordance 
with offset ratios contained in the approved SIP for the applicable 
nonattainment area. The inclusion, in whole or in part, of the 
interpollutant offset provisions for PM2.5 is discretionary 
on the part of the states. In the preamble to the 2008 NSR 
PM2.5 Rule, EPA included preferred or presumptive offset 
ratios, applicable to specific PM2.5 precursors that a state 
may adopt in conjunction with the new interpollutant offset provisions 
for PM2.5, and for which a state could rely on the EPA's 
technical work to demonstrate the adequacy of the ratios for use in any 
PM2.5 nonattainment area. Alternatively, the preamble 
indicated that states may adopt their own ratios, subject to the EPA's 
approval, that would have to be substantiated by modeling or other 
technical demonstrations of the net air quality benefit for ambient 
PM2.5 concentrations. The preferred ratios were subsequently 
the subject of a petition for reconsideration, which the Administrator 
granted. EPA continues

[[Page 75106]]

to support the basic policy that sources may offset increases in 
emissions of direct PM2.5 or of any PM2.5 
precursor in a PM2.5 nonattainment area with actual 
emissions reductions in direct PM2.5 or PM2.5 
precursors in accordance with offset ratios as approved in the SIP for 
the applicable nonattainment area. However, EPA no longer considers the 
preferred ratios set forth in the preamble to the 2008 PM2.5 
NSR Rule for PM2.5 NSR implementation to be presumptively 
approvable. Instead, any ratio involving PM2.5 precursors 
adopted by the state for use in the interpollutant offset program for 
PM2.5 nonattainment areas must be accompanied by a technical 
demonstration that shows the net air quality benefits of such ratio for 
the PM2.5 nonattainment area in which it will be applied.
    A Technical Support Document (TSD) is included in the docket for 
this action, and contains additional detail regarding the history and 
background of the Federal counterparts to the regulations included in 
the June 2012 SIP submittal, which will not be restated here.

II. Summary of SIP Revision

    The proposed SIP revisions include amendments to ACHD's Rules and 
Regulations, Article XXI sections: 2102.20 (Definitions), 2102.04 
(Installation permits), 2102.06 (Major sources Locating in or Impacting 
a Nonattainment Area), and 2102.08 (Emissions Offset Registration). The 
revisions in the June 2012 SIP submittal create a revised NNSR program 
in Allegheny County which, through amendment and incorporation by 
reference, reflects all the changes to Pennsylvania's NNSR Program from 
the revisions to Pennsylvania's SIP approved on May 14, 2012 (NSR 
reform rules) and on August 13, 2012 (2008 NSR PM2.5 rule).

III. Analysis

A. NSR Reform

    EPA last took action to approve ACHD's NNSR program into the 
Pennsylvania SIP on November 14, 2002 (see 67 FR 68935). At that time, 
a portion of ACHD's approved NNSR program directly relied upon an 
incorporation by reference of the requirements then codified at 25 PA 
Code 127.211. In 2007, Pennsylvania revised its NNSR regulations and 
these revised NNSR regulations were approved into the Pennsylvania SIP 
on May 14, 2012 (77 FR 28261). These changes added the NSR reform 
elements into Pennsylvania's NNSR program. However, those changes also 
deleted section 127.211, and re-codified those requirements elsewhere. 
That action created a deficiency in ACHD's NNSR provisions, because 
they relied on the incorporation by reference of a regulatory citation 
that no longer existed. The June 2012 SIP submittal has incorporated by 
reference Pennsylvania's NNSR program provisions which are set forth at 
25 PA Code Chapter 127 as approved by EPA, including the correct 
citation at 25 PA Code 127.203a. Because EPA has already approved 
Pennsylvania's revised NNSR regulations (see 77 FR 28261), there is no 
need to re-evaluate these same NSR Reform elements which are set forth, 
or incorporated by reference, in the June 2012 SIP submittal.
    EPA has determined that the June 2012 SIP submittal has 
incorporated all of PADEP's NNSR construction, modification, 
reactivation, and operating permit program provisions at 25 PA Code 
section 121.1 and 25 PA Code Chapter 127 (PADEP's NNSR program) and is 
proposing to approve this submittal as meeting the Federal NNSR 
requirements.

B. Implementation of NSR Requirements for PM2.5

    On July 13, 2012, EPA took final action to approve the provisions 
promulgated in the 2008 NSR PM2.5 Rule into the Pennsylvania 
SIP. See 77 FR 41276. By virtue of the incorporation by reference of 
Pennsylvania's NNSR regulations, Pennsylvania's June 2012 SIP submittal 
includes revisions to ACHD's nonattainment NSR program consistent with 
the provisions promulgated in the 2008 NSR PM2.5 Rule and 
already approved into Pennsylvania's SIP.
    EPA is in the process of evaluating the requirements of subpart 4 
as they pertain to nonattainment NSR. In particular, subpart 4 includes 
section 189(e) of the CAA, which requires the control of major 
stationary sources of PM10 precursors (and hence under the 
DC Circuit court decision, PM2.5 precursors) ``except where 
the Administrator determines that such sources do not contribute 
significantly to PM10 levels which exceed the standard in 
the area.'' The evaluation of which precursors need to be controlled to 
achieve the standard in a particular area is typically conducted in the 
context of the state's preparing and the EPA's reviewing of an area's 
attainment plan SIP.
    While ACHD's submittal may not yet contain all of the elements 
necessary to satisfy the CAA requirements when evaluated under subpart 
4, the proposed revisions represent a considerable strengthening of the 
currently approved Pennsylvania SIP, which does not currently address 
PM2.5 for Allegheny County. Therefore, EPA is granting full 
approval to the nonattainment NSR provisions in ACHD's June 2012 SIP.
    For the reasons previously discussed, EPA is not evaluating at this 
time whether ACHD's submittal will require additional revisions to 
satisfy the subpart 4 requirements. As discussed in section I 
(Background), by separate rulemaking action, EPA has identified the 
classification under subpart 4 of areas currently designated 
nonattainment for the 1997 and 2006 PM2.5 NAAQS as 
``Moderate.'' These areas include the Liberty-Clairton and Pittsburgh 
nonattainment areas, portions of which are regulated by ACHD and, 
therefore, are subject to the regulatory revisions being proposed for 
approval in this action. That rulemaking also established a December 
31, 2014 deadline for the submission of any additional attainment 
related SIP elements that may be needed to meet the applicable 
requirements of subpart 4. Therefore, those requirements are not yet 
due. EPA believes that it is appropriate for the EPA to take into 
consideration the timing and sequence of related SIP submissions as 
part of determining what it is reasonable to expect a State to have 
addressed in a SIP for a NAAQS at the time when the EPA acts on such 
submission. Such an approach is reasonable, and to adopt a different 
approach by which the EPA could not approve a SIP, whenever there was 
any impending or future revision to the SIP that will be required by 
another collateral rulemaking action would result in regulatory 
gridlock. The EPA believes that such an outcome would be an 
unreasonable reading of the statutory process for the SIP's 
contemplated in section 110(a) (1) and (2).

IV. Proposed Action

    EPA is proposing full approval of the June 2012 SIP submittal, 
which creates a revised NNSR program in Allegheny County.

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 proposes to approve state law as meeting Federal 
requirements and does

[[Page 75107]]

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 proposed rule, which concerns a revised NNSR 
program in Allegheny County, 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: November 21, 2014.
 Shawn M. Garvin,
Regional Administrator, Region III.
[FR Doc. 2014-29579 Filed 12-16-14; 8:45 am]
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