[Federal Register Volume 80, Number 13 (Wednesday, January 21, 2015)]
[Proposed Rules]
[Pages 2841-2846]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-00742]



[[Page 2841]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2014-0342; FRL-9921-64-Region 3]


Approval and Promulgation of Implementation Plans; Pennsylvania; 
Pennsylvania Regional Haze State Implementation Plan Revision: Sulfur 
Dioxide and Nitrogen Oxide Best Available Retrofit Technology Limits 
for the Cheswick Power Plant

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing limited 
approval and limited disapproval of a revision to the Pennsylvania 
State Implementation Plan (SIP) submitted by the Commonwealth of 
Pennsylvania through the Pennsylvania Department of Environmental 
Protection (PADEP). This SIP revision addresses the sulfur dioxide 
(SO2) and nitrogen oxide (NOX) Best Available 
Retrofit Technology (BART) requirements for Boiler Number 1 of the 
Cheswick Generating Station (Cheswick) in Allegheny County. EPA is 
proposing a limited approval of the SIP revision for Cheswick's 
SO2 and NOX BART requirements on the basis that 
the revision corrects an error in the SIP and strengthens the 
Pennsylvania SIP, while EPA is also proposing a limited disapproval of 
this part of the SIP revision because the SIP revision relies on the 
Clean Air Interstate Rule (CAIR) and not the Cross-State Air Pollution 
Rule (CSAPR) which has replaced CAIR. EPA is proposing limited approval 
and limited disapproval of the Pennsylvania SIP revision addressing the 
SO2 and NOX BART requirements in accordance with 
the requirements of the Clean Air Act (CAA) and EPA's rules for BART.

DATES: Comments must be received on or before February 20, 2015.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2014-0342, 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-2014-0342, Cristina Fernandez, Associate 
Director, Office of Air Program Planning, Mailcode 3AP30, 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-
2014-0342. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov, your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy during normal business hours at the Air Protection 
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch 
Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal 
are available at the Pennsylvania Department of Environmental 
Protection, Bureau of Air Quality Control, P.O. Box 8468, 400 Market 
Street, Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Irene Shandruk, (215) 814-2166, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
II. Summary of SIP Revision
III. EPA's Analysis of SIP Revision
IV. EPA's Analysis of 110(l)
V. EPA's Proposed Action
VI. Statutory and Executive Order Reviews

I. Background

    Regional haze is visibility impairment that is produced by a 
multitude of sources and activities which are located across a broad 
geographic area and emit fine particles (e.g., sulfates, nitrates, 
organic carbon, elemental carbon, and soil dust) and their precursors 
(e.g., SO2, NOX, and in some cases, ammonia 
(NH3) and volatile organic compounds (VOC)). Fine particle 
precursors react in the atmosphere to form fine particulate matter 
(PM2.5), which impairs visibility by scattering and 
absorbing light. Visibility impairment reduces the clarity, color, and 
visible distance that one can see. Section 169A of the CAA establishes 
as a national goal the ``prevention of any future, and the remedying of 
any existing, impairment of visibility in mandatory class I Federal 
areas which impairment results from manmade air pollution'' and 
requires SIPs for states whose emissions may reasonably be anticipated 
to cause or contribute to visibility impairment in Class I areas to 
contain emission limits, compliance schedules and other measures as may 
be necessary to make reasonable progress toward the national goal of 
achieving natural visibility conditions in Class I areas.\1\ A regional 
haze SIP generally must include, among other measures, source-specific 
BART emission limits for each source subject to BART. A detailed 
discussion of the requirements of the regional haze program can be 
found in our earlier notice proposing action on Pennsylvania's regional 
haze SIP. See 77 FR 3984 (January 26, 2012).
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    \1\ EPA's regulations implementing CAA section 169A are located 
at 40 CFR 51.308 and require states to establish long-term 
strategies for making reasonable progress toward meeting the 
national goal in CAA section 169A.
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    Rather than requiring source-specific BART controls, states also 
have the flexibility to adopt an emissions trading program or other 
alternative program as long as the alternative provides greater 
reasonable progress towards improving visibility than BART. 40 CFR 
51.308(e)(2). EPA made such a

[[Page 2842]]

demonstration for the CAIR.\2\ 70 FR 39104 (July 6, 2005). EPA's 
regulations provided that states participating in the CAIR cap and 
trade program under 40 CFR part 96 pursuant to an EPA-approved CAIR SIP 
or which remain subject to the CAIR Federal Implementation Plan (FIP) 
in 40 CFR part 97, do not require affected BART eligible electric 
generating units (EGUs) to install, operate, and maintain BART for 
emissions of SO2 and NOX. See 40 CFR 
51.308(e)(4). EPA subsequently determined that the trading programs in 
the CSAPR, which was promulgated to replace CAIR, would achieve greater 
reasonable progress towards the national goal than would BART and could 
also serve as an alternative to source-by-source BART. See 77 FR 33641 
(June 7, 2012).\3\
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    \2\ CAIR required certain states like Pennsylvania to reduce 
emissions of SO2 and NOX that significantly 
contribute to downwind nonattainment of the 1997 NAAQS for 
PM2.5 and ozone. See 70 FR 25162 (May 12, 2005). CAIR was 
later found to be inconsistent with the requirements of the CAA and 
the rule was remanded to EPA. See North Carolina v. EPA, 550 F.3d 
1176 (D.C. Cir. 2008). The court left CAIR in place until replaced 
by EPA with a rule consistent with its opinion. Id.
    \3\ CSAPR was proposed by EPA to replace CAIR and to help states 
reduce air pollution and attain CAA standards. See 75 FR 45210 
(August 2, 2010) (proposal) and 76 FR 48208 (August 8, 2011) (final 
rule). The United States Court of Appeals for the D.C. Circuit 
issued a decision in EME Homer City Generation, L.P. v. EPA, 696 
F.3d 7 (D.C. Cir. 2012), vacating CSAPR and keeping CAIR in place 
pending the promulgation of a valid replacement rule. Subsequently, 
on April 29, 2014, the United States Supreme Court reversed the 
August 21, 2012 opinion of the D.C. Circuit which had vacated CSAPR 
and remanded the matter to the D.C. Circuit for further proceedings. 
EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014). 
After the Supreme Court's decision, EPA filed a motion to lift the 
stay of CSAPR and asked the D.C. Circuit to toll CSAPR's compliance 
deadlines by three years, so that the Phase 1 emissions budgets 
apply in 2015 and 2016 (instead of 2012 and 2013), and the Phase 2 
emissions budgets apply in 2017 and beyond (instead of 2014 and 
beyond). On October 23, 2014, the D.C. Circuit granted EPA's motion 
and lifted the stay on CSAPR. EME Homer City Generation, L.P. v. 
EPA, No. 11-1302 (D.C. Cir. Oct. 23, 2014), Order at 3. EPA views 
the D.C. Circuit's October 23, 2014 Order as also granting EPA's 
request to toll CSAPR's compliance deadlines and will therefore 
commence implementation of CSAPR on January 1, 2015. 79 FR 71663 
(Dec. 3, 2014) (interim final rule revising CSAPR compliance 
deadlines).
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    On December 20, 2010, PADEP submitted revisions to the Pennsylvania 
SIP to address regional haze as required by the CAA and 40 CFR 51.308. 
At the time of the development and submission of Pennsylvania's 
December 20, 2010 regional haze SIP submission, EPA had not yet 
promulgated CSAPR to replace CAIR. On July 13, 2012, EPA finalized a 
limited approval of the Pennsylvania regional haze SIP. 77 FR 41279. 
Our approval was limited due to Pennsylvania's reliance upon CAIR for 
certain regional haze requirements including BART for EGUs. On June 7, 
2012, EPA had also finalized the limited disapproval of Pennsylvania's 
regional haze SIP (and other states' regional haze SIPs that relied 
similarly on CAIR) due to its reliance on CAIR as EPA had issued the 
CSAPR to replace CAIR at that time. 77 FR 33641. On June 7, 2012, EPA 
also finalized a limited FIP for Pennsylvania and other states, which 
merely substituted reliance on EPA's more recent CSAPR NOX 
and SO2 trading programs for EGUs for the SIP's reliance on 
CAIR.\4\ See 77 FR 33641.
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    \4\ In response to a petition for review of EPA's limited 
approval of the Pennsylvania regional haze SIP in the United States 
Court of Appeals for the Third Circuit, EPA successfully moved for a 
voluntary remand without vacatur. On April 30, 2014, EPA reissued 
its final limited approval of the Pennsylvania SIP to implement the 
Commonwealth's regional haze program for the first planning period 
through 2018. 79 FR 24340.
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    For the December 20, 2010 regional haze SIP, the Allegheny County 
Health Department (ACHD) had performed a BART analysis for Cheswick, a 
Pennsylvania EGU. In the May 4, 2009 Cheswick BART review memo, ACHD 
stated it performed its BART analysis in accordance with 40 CFR 
51.308(e) and 40 CFR part 51, Appendix Y, Guidelines for BART 
Determinations Under the Regional Haze Rule (BART Guidelines).\5\ The 
May 4, 2009 Cheswick BART review memo was included in Pennsylvania's 
December 20, 2010 regional haze SIP (in Appendix J) and specifically 
stated that SO2 and NOX limits were not 
considered in the memo since the source was participating in CAIR. The 
May 4, 2009 BART Review Memo for Cheswick and the December 20, 2010 
regional haze SIP submission also contained an error concerning the 
recommended particulate matter (PM) BART for Cheswick. EPA has proposed 
to correct that error in a separate rulemaking and is not taking public 
comment on Cheswick's revised PM BART in this action. See 79 FR 64539 
(October 30, 2014).\6\
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    \5\ The BART Guidelines provide a process for making BART 
determinations that states and local agencies can use in 
implementing the regional haze BART requirements on a source-by-
source basis, as provided in 40 CFR 51.308(e)(1).
    \6\ Detailed information regarding EPA's rationale for proposing 
to correct the PM BART for Cheswick is available at 79 FR 64539.
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    The December 20, 2010 regional haze SIP submission explicitly 
provided that BART for Pennsylvania EGUs was participation in CAIR; 
however, the SIP submission incorrectly identified SO2 and 
NOX BART emission limits for Cheswick in error.\7\ After EPA 
proposed limited approval of the Pennsylvania regional haze SIP on 
January 26, 2012 (77 FR 3984), the owner of Cheswick commented that 
Cheswick's BART emission limits proposed by PADEP were in error 
including the SO2 and NOX limits because PADEP 
had intended to rely on CAIR for SO2 and NOX BART 
limits for EGUs.\8\
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    \7\ The December 20, 2010 regional haze SIP submission included 
the following BART emission limits for Cheswick: 67,452 tons per 
year (tpy) of SO2, 10,840 tpy of NOX, and 361 
tpy of coarse PM (PM10). According to Pennsylvania and 
explained in its March 25, 2014 SIP submittal, these emission limits 
were included in error. The May 4, 2009 Cheswick BART review memo 
identified the 67,452 tpy of SO2 and 10,840 tpy of 
NOX as Cheswick's potential to emit SO2, and 
NOX.
    \8\ The comments from the owner of Cheswick on the proposed 
Cheswick BART are available in the rulemaking docket from our 
approval of the Pennsylvania regional haze SIP, docket number EPA-
R03-OAR-2012-0002, at www.regulations.gov.
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II. Summary of SIP Revision

    On March 25, 2014, the Commonwealth of Pennsylvania through PADEP 
submitted a SIP revision to revise the incorrect PM BART emission limit 
for Cheswick's Boiler No. 1 and to remove the errant inclusion of the 
SO2 emission limit of 67,452 tons per year (tpy) and the 
NOX emission limit of 10,840 tpy for Cheswick's Boiler No. 1 
from the regional haze SIP because Pennsylvania intended CAIR as 
SO2 and NOX BART for all EGUs including 
Cheswick.\9\ PADEP submitted this SIP revision in accordance with the 
visibility and regional haze provisions of Sections 169A and 169B of 
the CAA and the regional haze rule at 40 CFR 51.308.\10\
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    \9\ As stated previously, EPA has proposed to approve the 
revision to Cheswick's PM BART emission limit in a separate 
rulemaking. See 79 FR 64539.
    \10\ The March 25, 2014 SIP revision also updates the owner's 
name of Cheswick from Orion Power to GenOn Power Midwest LP and 
updates the permit numbers and dates of issuance for Cheswick's 
Boiler No. 1. However, the present owner of Cheswick is now NRG 
Energy.
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    PADEP stated in its submittal that the SO2 and 
NOX BART emission limits for Cheswick were included in the 
BART table in its December 10, 2010 regional haze SIP in conflict with 
the ACHD Cheswick BART review memo and the narrative portion of the 
December 20, 2010 SIP submittal which discussed CAIR as satisfying 
SO2 and NOX BART for BART-eligible EGUs in 
Pennsylvania. In the March 25, 2014 SIP revision submittal, PADEP 
stated the SO2 and NOX BART emission limits for 
Cheswick were included in error. The analysis included in the December 
20, 2010 regional haze SIP relied upon all Pennsylvania EGUs complying 
with CAIR for BART for SO2 and NOX. Therefore, 
PADEP concluded that the removal of the limits included in the December 
20, 2010 regional haze SIP in

[[Page 2843]]

error will not interfere with visibility improvement, with 
Pennsylvania's reasonable progress to achieving natural visibility 
conditions as required by the CAA, nor with any applicable requirement 
under the CAA.
    ACHD had updated the BART analysis for Boiler No. 1 at Cheswick 
with a new memo on November 7, 2012 which retained the recommendation 
of CAIR as SO2 and NOX BART for Cheswick and 
recommended a new PM BART emissions limit. The November 7, 2012 BART 
review memo explained that Cheswick has stringent pollution controls 
installed including flue gas desulfurization (FGD) for SO2 
control, selective catalytic reduction (SCR) for NOX 
control, and an electrostatic precipitator (ESP) for PM control. The 
November 7, 2012 BART review memo also indicated that two separate 
modeling studies show that visibility impacts from Cheswick are 
minimal.

III. EPA's Analysis of SIP Revision

    EPA proposes a limited approval to the March 25, 2014 SIP revision 
to the Cheswick SO2 and NOX BART limits included 
in the Pennsylvania regional haze SIP because the removal of the 
specific SO2 and NOX emission limits corrects an 
error in the regional haze SIP and strengthens the Pennsylvania SIP 
overall through replacing the incorrect BART limits with an emission 
trading program which should reduce SO2 and NOX 
emissions more than the limits approved in the regional haze SIP in 
error.\11\ EPA proposes a limited disapproval to the portion of the SIP 
revision addressing SO2 and NOX BART for Cheswick 
because the revision relies on replacing the specific SO2 
and NOX limits with CAIR which the D.C. Circuit remanded to 
EPA and which EPA replaced with CSAPR. Although certain issues 
regarding CSAPR remain for resolution in the D.C. Circuit, the D.C. 
Circuit has lifted the stay on CSAPR which will enable EPA to commence 
forthwith the implementation of CSAPR to replace CAIR as the emissions 
trading program for SO2 and NOX for EGUs in 
certain states including Pennsylvania. See EME Homer City Generation, 
L.P. v. EPA, No. 11-1302 (D.C. Cir. Oct. 23, 2014), Order at 3.
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    \11\ The SO2 and NOX BART emission limits 
recommended in error in the December 20, 2010 regional haze SIP 
submission by PADEP are Cheswick's potentials to emit SO2 
and NOX. See the May 4, 2009 Cheswick BART review memo in 
Appendix J to the Pennsylvania December 20, 2010 regional haze SIP 
which is available in the rulemaking docket from our approval of the 
Pennsylvania regional haze SIP, docket number EPA-R03-OAR-2012-0002, 
at www.regulations.gov. CAIR and CSAPR set allowance numbers for 
emissions of SO2 and NOX from certain EGUs 
including Cheswick, reflecting emission reductions which would be 
below a source's potential to emit. See 70 FR 39104 (CAIR) and 76 FR 
48208 (CSAPR).
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    For Cheswick's SO2 and NOX BART requirements, 
EPA finds Pennsylvania intended in its December 20, 2010 regional haze 
SIP to rely on CAIR as an alternative to source-specific BART emission 
limits for EGUs for SO2 and NOX. In its December 
20, 2010 regional haze SIP submission, PADEP clearly explained that 
BART determinations for EGUs were conducted for PM emissions only 
because BART-eligible EGUs located in Pennsylvania are subject to the 
Federal CAIR program for SO2 and NOX. See Section 
8.2 ``EGUs and CAIR'' in Pennsylvania's December 20, 2010 regional haze 
SIP.\12\ In addition, the May 4, 2009 and November 7, 2012 BART review 
memos by ACHD for Cheswick also clearly stated that EPA has determined 
that BART requirements for EGUs covered by CAIR are satisfied by the 
CAIR requirements for NOX and SO2 so a BART 
engineering analysis was not required for these pollutants.\13\
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    \12\ The December 20, 2010 Pennsylvania regional haze SIP 
submission is available in the EPA rulemaking docket for our 
approval of the Pennsylvania regional haze SIP, docket number EPA-
R03-OAR-2012-0002, at www.regulations.gov.
    \13\ The May 4, 2009 BART memo for Cheswick was included in 
Appendix J to the December 20, 2010 regional haze SIP, available in 
the EPA rulemaking docket for our approval of the Pennsylvania 
regional haze SIP, docket number EPA-R03-OAR-2012-0002, at 
www.regulations.gov. The November 7, 2012 BART memo for Cheswick is 
included with the March 25, 2014 regional haze SIP revision in the 
rulemaking docket for this action.
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    EPA finds our prior approval of the source specific SO2 
and NOX BART limits for Cheswick was in error. According to 
explicit statements in its December 20, 2010 SIP submittal, 
Pennsylvania clearly relied on CAIR as an alternative to SO2 
and NOX BART emission limits for all EGUs in its regional 
haze SIP and therefore intended Cheswick, an EGU, to have CAIR for 
SO2 and NOX BART. Thus, EPA finds the 
SO2 and NOX BART limits for Cheswick were 
inadvertently included in the December 20, 2010 regional haze SIP 
submittal and therefore approved by EPA as part of the regional haze 
SIP in error.\14\ EPA finds no further analysis is needed for the 
removal of the specific SO2 and NOX BART emission 
limits at Cheswick's Boiler No. 1 and replacement with a Federally 
enforceable emissions trading program as BART for SO2 and 
NOX. See CAA section 110(k)(6) (providing EPA authority to 
correct SIPs when EPA finds an error). Pennsylvania's analysis and 
conclusions, including related modeling and technical support documents 
regarding its regional haze SIP containing sufficient limits and 
measures so as to not interfere with reasonable progress and visibility 
improvement generally and not to interfere with other states achieving 
their reasonable progress goals (RPGs) at Class I areas, specifically 
were based on Pennsylvania EGUs complying with CAIR for BART and other 
regional haze requirements not relevant here.15 16 Thus, EPA 
proposes its limited approval of this SIP revision to remove the 
specific Cheswick SO2 and NOX BART limits in 
accordance with sections 110(k)(6) and 169A of the CAA because EPA 
determined the prior limited approval of the regional haze SIP was in 
error relating to Cheswick's BART limits for SO2 and 
NOX. EPA proposes a limited disapproval of this SIP revision 
for Cheswick's SO2 and NOX BART limits in 
accordance with section 169A of the CAA because Pennsylvania relied 
upon CAIR for SO2 and NOX BART for Cheswick (and 
all Pennsylvania EGUs) and CSAPR is replacing CAIR as the emissions 
trading program for SO2 and NOX. Upon final 
action on this limited disapproval, Cheswick will be subject to EPA's 
June 7, 2012 FIP which replaced CAIR with CSAPR as SO2 and 
NOX BART for Pennsylvania EGUs.
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    \14\ EPA believes the evidence discussed in Pennsylvania's March 
25, 2014 SIP revision submittal and in this rulemaking clearly 
support that neither Pennsylvania nor ACHD intended to set source-
specific BART emission limits for Cheswick for SO2 or 
NOX and that the inclusion of those limits in the 
regional haze SIP submittal and in EPA's limited approval of the 
regional haze SIP was inadvertent and in error.
    \15\ PADEP concluded in its December 20, 2010 regional haze SIP 
that its long term strategy and BART determinations provide 
sufficient reductions to mitigate impacts of emissions from sources 
located in Pennsylvania on affected Class I areas. See Section 3.0 
of the December 20, 2010 regional haze SIP.
    \16\ As explained further in this proposed rulemaking, once 
CSAPR is implemented, EPA believes the reliance upon CAIR for 
SO2 and NOX BART at Cheswick, a Pennsylvania 
EGU, will be replaced by reliance upon CSAPR for SO2 and 
NOX BART through the June 7, 2012 FIP which replaced 
CSAPR for CAIR for all Pennsylvania EGU's SO2 and 
NOX BART.
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    EPA's 2012 limited approval and disapproval of the Pennsylvania 
regional haze SIP was based on Pennsylvania EGUs having CAIR as an 
alternative to SO2 and NOX specific BART emission 
rates. EPA finds that Cheswick has installed controls for 
SO2 and NOX, including a FGD and SCR, to comply 
with CAIR and CSAPR which will limit emissions from Cheswick of 
visibility-impairing pollutants and minimize visibility impacts from 
the

[[Page 2844]]

plant.\17\ EPA finds the removal of these source-specific limits and 
the replacement with CSAPR when implemented, will not interfere with 
visibility improvement or with any applicable requirement under the 
CAA, particularly the visibility and regional haze provisions of 
sections 169A and 169B of the CAA and 40 CFR 51.308. EPA believes this 
removal and replacement with CSAPR strengthens the Pennsylvania SIP 
because EPA found CSAPR is ``Better than BART'' and provides greater 
reasonable progress towards natural visibility conditions than source-
specific BART limits for EGUs. See 77 FR 33641.\18\
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    \17\ According to the Cheswick BART review memos prepared by 
ACHD, Cheswick also installed a new, shorter stack with installation 
of its FGD and SCR.
    \18\ Before CAIR was remanded by the D.C. Circuit, EPA had found 
CAIR provides greater reasonable progress than source-specific BART, 
and the D.C. Circuit specifically upheld CAIR as an alternative to 
BART in accordance with the requirements of Section 169A of the CAA. 
Utility Air Regulatory Group v. EPA, 471 F.3d 1333, 1340 (D.C. Cir. 
2006) (finding EPA's conclusion that CAIR provides greater 
reasonable progress reasonable and citing 40 CFR 51.308(e)(4) and 70 
FR 39104, 39136 (July 6, 2005)).
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    EPA does not believe that the status of CAIR or CSAPR limits EPA's 
ability to propose the limited approval of this SIP revision for 
SO2 and NOX BART for Cheswick. In August 2011 
after Pennsylvania had developed and submitted its regional haze SIP to 
EPA with its reliance upon CAIR, EPA replaced CAIR with CSAPR (76 FR 
48208 (August 8, 2011)) to address issues raised in North Carolina v. 
EPA by the D.C. Circuit. See 531 F.3d 896 (D.C. Cir. 2008). CSAPR 
requires substantial reductions of SO2 and NOX 
emissions from EGUs in 28 states in the Eastern United States that 
significantly contribute to downwind nonattainment of the 1997 
PM2.5 and ozone NAAQS and 2006 PM2.5 NAAQS. 
Implementation of the rule was scheduled to begin on January 1, 2012, 
when CSAPR's cap-and-trade programs would have superseded the CAIR cap-
and-trade programs. However, numerous parties filed petitions for 
review of CSAPR, and on December 30, 2011, the D.C. Circuit issued an 
order staying CSAPR pending resolution of the petitions and directing 
EPA to continue to administer CAIR. EME Homer City Generation, L.P. v. 
EPA, No. 11-1302 (D.C. Cir. Dec. 30, 2011), Order at 2.
    Nevertheless, on June 7, 2012, EPA issued a FIP for Pennsylvania, 
which substituted Pennsylvania's reliance on CAIR for SO2 
and NOX BART for EGUs with CSAPR's NOX and 
SO2 trading programs for BART for the Pennsylvania EGUs as 
EPA expected CSAPR to replace CAIR pending the conclusion of litigation 
in the DC Circuit. See 77 FR 33641. Following EPA's actions for 
Pennsylvania's regional haze requirements, the DC Circuit issued a 
decision in EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. 
Cir. 2012), vacating CSAPR and ordering EPA to continue administering 
CAIR. On April 29, 2014, the United States Supreme Court reversed the 
DC Circuit's decision and remanded the matter, including CSAPR, to the 
DC Circuit for further proceedings in accordance with its ruling. EPA 
v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014). EPA had 
filed a motion to lift the stay on CSAPR in light of the Supreme 
Court's decision and also asked the DC Circuit to toll CSAPR's 
compliance deadlines by three years, so that the Phase 1 emissions 
budgets apply in 2015 and 2016 (instead of 2012 and 2013), and the 
Phase 2 emissions budgets apply in 2017 and beyond (instead of 2014 and 
beyond). On October 23, 2014, the DC Circuit granted EPA's motion to 
lift the stay on CSAPR. EME Homer City Generation, L.P. v. EPA, No. 11-
1302 (D.C. Cir. Oct. 23, 2014), Order at 3. EPA views the DC Circuit's 
October 23, 2014 Order as also granting EPA's request to toll CSAPR's 
compliance deadlines and will therefore commence implementation of 
CSAPR on January 1, 2015. 79 FR 71663 (December 3, 2014) (interim final 
rule revising CSAPR compliance deadlines). Therefore, the CAIR 
provisions will sunset on December 31, 2014 and be replaced by CSAPR. 
CSAPR will be implemented as a FIP by EPA, until such time as 
Pennsylvania adds the provisions of CSAPR to its SIP.\19\
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    \19\ CSAPR requires substantial reductions of SO2 and 
NOX emissions from EGUs in 28 states in the Eastern 
United States that significantly contribute to downwind 
nonattainment or interfere with maintenance of the 1997 
PM2.5 and ozone NAAQS and 2006 PM2.5 NAAQS.
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    EPA does not believe that the status of EME Homer City, or CAIR and 
CSAPR in particular, limits EPA's ability to propose action on this SIP 
revision to Cheswick's BART for SO2 and NOX 
limitations for several reasons. First, EPA will commence 
implementation of CSAPR forthwith, and Pennsylvania EGUs including 
Cheswick are subject to CSAPR pursuant to the CSAPR FIP (76 FR 48208) 
in general. Thus, EGUs in Pennsylvania, including Cheswick, will be 
subject to the Federally enforceable requirements of CSAPR upon its 
imminent implementation. Pursuant to the June 7, 2012 FIP for 
Pennsylvania for certain regional haze requirements, EGUs in the 
Commonwealth are subject to CSAPR as their BART requirement for 
SO2 and NOX. See 77 FR 33641. Nothing in EPA's 
June 7, 2012 FIP (77 FR 33641) excludes Cheswick, an EGU otherwise 
subject to Federal CSAPR requirements, from the June 7, 2012 FIP 
replacing Pennsylvania's reliance upon CAIR with reliance upon CSAPR 
for EGU BARTs. Therefore, upon final approval of this rulemaking 
proposing limited approval and limited disapproval of the March 25, 
2014 SIP revision, Cheswick's SO2 and NOX BART 
limits will be subject to CSAPR like every other EGU in Pennsylvania. 
Because EPA determined CSAPR achieves greater reasonable progress 
towards the national goal of achieving natural visibility conditions in 
Class I areas than source-specific BART in those states covered by 
CSAPR, EPA expects greater emissions reductions of SO2 and 
NOX from Pennsylvania EGUs subject to CSAPR than from 
Cheswick's prior limits or from CAIR. See 77 FR 33641 (concluding CSAPR 
was better than BART) and 76 FR 48208 (promulgating CSAPR).
    EPA therefore proposes its limited approval and limited disapproval 
of this portion of the March 25, 2014 SIP revision addressing 
SO2 and NOX BART. CAA section 110(c)(1) provides 
that EPA must promulgate a FIP within two years after disapproving a 
SIP submission in whole or in part, unless EPA approves a SIP revision 
correcting the deficiencies within that two-year period. EPA believes 
our limited disapproval of the March 25, 2014 SIP submission does not 
result in any new FIP obligation for EPA because EPA already 
promulgated a FIP on June 7, 2012 to address the identified deficiency 
(replacing CAIR with CSAPR for SO2 and NOX BART 
for Pennsylvania EGUs), and thus that FIP fully addresses Cheswick's 
SO2 and NOX BART. Under section 179(a) of the 
CAA, final disapproval of a submittal that addresses a requirement of 
part D of title I of the CAA (CAA sections 171-193) or is required in 
response to a finding of substantial inadequacy as described in CAA 
section 110(k)(5) (SIP Call) starts a sanctions clock. Pennsylvania's 
March 25, 2014 SIP revision submittal for revising Cheswick's BART was 
not submitted to meet either of these requirements. Therefore, EPA's 
limited disapproval of Pennsylvania's SIP submission concerning 
Cheswick's SO2 and NOX BART does not trigger 
mandatory sanctions under CAA section 179.
    In summary, EPA finds the SIP revision for the SO2 and 
NOX BART for Cheswick removes an error in the

[[Page 2845]]

Pennsylvania SIP and strengthens the Pennsylvania SIP. EPA proposes a 
limited approval for the Cheswick SO2 and NOX 
BART SIP revision in accordance with sections 110(k)(6), 169A and 169B 
of the CAA. EPA proposes a limited disapproval because the SIP revision 
relies upon CAIR and not CSAPR for Cheswick's SO2 and 
NOX BART. However, EPA finds Cheswick is subject to EPA's 
June 7, 2012 FIP which replaced CSAPR for CAIR for SO2 and 
NOX BART for Pennsylvania EGUs.

IV. EPA's Analysis of 110(l)

    Section 110(l) of the CAA states that ``[t]he Administrator shall 
not approve a revision of a plan if the revision would interfere with 
any applicable requirement concerning attainment and reasonable further 
progress or any other applicable requirement of this chapter.'' EPA 
does not interpret section 110(l) to require a full attainment or 
maintenance demonstration before any changes to a SIP may be approved. 
Generally, a SIP revision may be approved under section 110(l) if the 
EPA finds that it will at least preserve status quo air quality, 
particularly where the pollutants at issue are those for which an area 
has not been designated nonattainment. EPA does not believe the 
proposed limited approval and limited disapproval of the SO2 
and NOX BART emission limitations will interfere with the 
CAA requirements for BART or for preventing interference with other 
states' programs to protect visibility because this proposal is 
supported by an evaluation that those CAA requirements are met. This 
SIP revision will correct errors from PADEP in the BART limits 
determined for Cheswick and will replace BART emission limitations with 
limits intended by Pennsylvania which EPA finds reasonable. This SIP 
revision will not result in any substantive changes to other CAA 
requirements. Cheswick will continue to be subject to CAA requirements 
for BART.
    The SIP revision replaces a prior determination that was in error 
for SO2 and NOX as Pennsylvania intended EGUs to 
have CAIR for SO2 and NOX BART. As discussed 
above, Pennsylvania's analysis supporting its regional haze SIP was 
based on EGUs having CAIR for SO2 and NOX 
BART.\20\ Thus, EPA does not anticipate the revisions to Cheswick's 
BARTs to interfere with neighboring states' ability to achieve RPGs 
given Cheswick's minimal visibility impact, Cheswick's SO2, 
NOX and PM controls and newer shorter stack, Cheswick's 
current compliance with CAIR, and recent monitored data from 
neighboring states showing progress towards RPGs.\21\
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    \20\ As discussed previously, EPA expects this SIP revision if 
finalized will replace Cheswick's specific SO2 and 
NOX BART emission limitations with reliance upon CSAPR 
for BART based on EPA's June 7, 2012 FIP for Pennsylvania EGU 
SO2 and NOX BARTs.
    \21\ For further discussion of progress towards RPGs and current 
visibility conditions in nearby Federal Class I areas based on the 
latest available Interagency Monitoring of Protected Visual 
Environments (IMPROVE) monitoring data, see EPA's approvals of 
Virginia's and Delaware's five-year progress reports on regional 
haze at 79 FR 25019 (May 2, 2014) (Virginia) and 79 FR 25506 (May 5, 
2014) (Delaware). See also 79 FR 10451 (February 25, 2014) (proposed 
approval of Virginia's progress report) and 79 FR 10442 (February 
25, 2014) (proposed approval of Delaware's progress report). EPA's 
proposed approval of West Virginia's five-year progress report on 
regional haze is at 79 FR 14460 (March 14, 2014). EPA has reviewed 
Cheswick's compliance with CAIR through data at EPA's Clean Air 
Markets Division (CAMD) database at http://www.epa.gov/airmarket/.
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    EPA also believes that approval of the submitted SIP revision will 
not interfere with attainment and maintenance of the NAAQS. Cheswick's 
previous SO2 BART limit in the regional haze SIP was 67,452 
tpy. Cheswick is not located in an area designated nonattainment for 
any SO2 NAAQS, Cheswick's actual SO2 emissions 
for 2012 and 2013 are well below the BART limit according to data from 
EPA's CAMD Web site,\22\ and Cheswick's SO2 allowances 
through CAIR and now CSAPR, which is replacing CAIR, will be lower than 
the prior SO2 BART established previously for Cheswick. In 
general, EPA expects CSAPR allowances for EGUs such as Cheswick to be 
less than the CAIR emission allowances.\23\ As Cheswick has been 
subject to CAIR since 2009, EPA does not anticipate the BART revision 
for SO2 to interfere with the 2010 SO2 NAAQS in 
the area near Cheswick as Cheswick has been in compliance with CAIR and 
Cheswick's new BART limit replaces the facility's prior limit which was 
its potential to emit SO2.
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    \22\ Cheswick's emissions data is available at EPA's CAMD 
database at http://www.epa.gov/airmarket/. EPA has reviewed 
preliminary SO2 data for Cheswick for 2014 and finds it 
consistent with 2012-13 data and with CAIR requirements.
    \23\ For a discussion of CSAPR and CSAPR allowances as 
promulgated, see 76 FR 48208.
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    Cheswick's prior NOX BART limit was 10,840 tpy. Cheswick 
is not located in an area designated nonattainment for the 2010 
NO2 NAAQS, but Cheswick is located in an area designated 
marginal nonattainment for the 2008 ozone NAAQS.\24\ However, 
Cheswick's actual NOX emissions for 2012 and 2013 are well 
below the prior BART limit according to data from EPA's CAMD Web site, 
and Cheswick's NOX allowances through CAIR and CSAPR are 
also lower than the prior NOX BART established previously 
for Cheswick. As stated previously, Cheswick has complied with CAIR 
since 2009. Therefore, EPA does not anticipate the NOX BART 
revision for Cheswick will interfere with or delay Pennsylvania's 
ability to reach attainment in the Pittsburgh-Beaver Valley 
nonattainment area for the 2008 ozone NAAQS.\25\
---------------------------------------------------------------------------

    \24\ The Pittsburgh-Beaver Valley area was designated moderate 
nonattainment for the 1997 eight-hour ozone NAAQS. However, EPA 
found the Pittsburgh-Beaver Valley area attained the 1997 ozone 
NAAQS by its June 15, 2010 attainment date and also found previously 
that the area continued to attain the 1997 ozone NAAQS with 
monitored data from 2009-2011 and preliminary data for 2012. 78 FR 
20244 (April 4, 2013). During this time, Cheswick operated with its 
CAIR requirements. Therefore, EPA does not find the SIP revision for 
Cheswick's NOX BART will interfere with the Pittsburgh-
Beaver Valley area's continued attainment and maintenance of the 
1997 ozone NAAQS.
    \25\ EPA notes the preliminary 2012-2014 design value for the 
Pittsburgh-Beaver Valley nonattainment area shows improving ozone 
air quality and reflects the area's ozone air quality approaching 
attainment with the 2008 ozone NAAQS. The 2014 data is not complete, 
quality assured or certified at this time. During this time, 
Cheswick has been complying with CAIR. EPA has reviewed preliminary 
2014 NOX data for Cheswick and finds it consistent with 
2012-13 data and with CAIR requirements.
---------------------------------------------------------------------------

    In addition, EPA does not anticipate any increase in emissions of 
SO2 or NOX from the submitted SIP revision which 
replaces prior BART limits set in error with CSAPR based on our review 
of Cheswick's recent emissions data indicating Cheswick has complied 
with CAIR requirements and because CSAPR should produce equivalent or 
greater reductions than CAIR. EPA believes the limited approval and 
limited disapproval of Pennsylvania's revision will not contribute to 
conditions of nonattainment or interfere with maintenance of any 
standard. Thus, EPA finds this SIP revision to Cheswick's BARTs 
complies with section 110(l) of the CAA and will not interfere with any 
applicable requirements concerning attainment and reasonable further 
progress or any other applicable requirement of the CAA, such as the 
visibility and regional haze provisions of sections 169A and 169B of 
the CAA.

V. EPA's Proposed Action

    EPA is proposing a limited approval of the portion of the 
Pennsylvania March 25, 2014 revision to its regional haze SIP which 
removes specific SO2 and NOX BART emission 
limitations for Cheswick set in error and is proposing a limited 
disapproval of the SIP revision due to its reliance upon CAIR which has 
been replaced with CSAPR. As EPA issued a FIP for SO2 and 
NOX BART

[[Page 2846]]

emission limitations for EGUs in Pennsylvania which includes Cheswick, 
no further action by EPA would be required to address the limited 
disapproval if finalized. This conclusion is based on our review of the 
March 25, 2014 SIP revision as well as Pennsylvania's December 20, 2010 
regional haze SIP submission including technical data and supporting 
analysis. Upon final action on this SIP revision, CSAPR for 
SO2 and NOX BART will supercede the previous 
SO2 and NOX BART determinations for Cheswick 
included in Pennsylvania's regional haze SIP as EPA will implement 
CSAPR beginning January 1, 2015.

VI. 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 
proposed 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 proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this proposed rule revising Pennsylvania's regional 
haze SIP pertaining to BART requirements for Cheswick 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen oxides, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur dioxide, 
Volatile organic compounds.

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

    Dated: December 23, 2014.
William C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2015-00742 Filed 1-20-15; 8:45 am]
BILLING CODE 6560-50-P