[Federal Register Volume 80, Number 59 (Friday, March 27, 2015)]
[Rules and Regulations]
[Pages 16286-16289]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-06965]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2014-0342; FRL-9925-16-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: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is finalizing a 
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 finalizing 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 finalizing 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. This final action 
is in accordance with the requirements of the Clean Air Act (CAA) and 
EPA's rules for BART.

DATES: This final rule is effective on April 27, 2015.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2014-0342. 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: Irene Shandruk, (215) 814-2166, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION:

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

[[Page 16287]]

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 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 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 (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. 
EPA commenced 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.
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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).
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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.

II. Summary of SIP Revision and EPA Analysis

    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 
BART SO2 and NOX emission limits 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. EPA has corrected the PM BART error in a separate rulemaking. 
See 80 FR 2834 (January 21, 2015). On January 21, 2015 (80 FR 2841), 
EPA published a notice of proposed rulemaking (NPR) for the 
Commonwealth of Pennsylvania proposing limited approval and limited 
disapproval of this SIP revision to correct the SO2 and 
NOX BART for Cheswick. As explained in detail in the NPR, 
EPA proposed 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 Cheswick's 
participation in an emissions trading program. EPA proposed a limited 
disapproval to the portion of the SIP revision addressing 
SO2 and NOX BART for Cheswick because the 
revision relied on replacing the specific SO2 and 
NOX limits with CAIR which the D.C. Circuit remanded to EPA 
and which EPA replaced with CSAPR. EPA began implementing CSAPR on 
January 1, 2015 as the emissions trading program for SO2 and 
NOX for EGUs in certain states including Pennsylvania 
following the D.C. Circuit's lifting of the stay on CSAPR. See EME 
Homer City Generation, L.P. v. EPA, No. 11-1302 (D.C. Cir. Oct. 23, 
2014), Order at 3. See also 79 FR 71663 (interim final rule revising 
CSAPR compliance deadlines).
    Although CAA section 110(c)(1) provides that EPA must promulgate a 
FIP within two years after disapproving

[[Page 16288]]

a SIP submission in whole or in part, unless EPA approves a SIP 
revision correcting the deficiencies, EPA believes our limited 
disapproval of the March 25, 2014 SIP submission does not result in any 
new FIP obligation for EPA because we 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). 
Thus, as explained in the NPR, the June 7, 2012 FIP fully addresses 
Cheswick's SO2 and NOX BART because Cheswick is a 
Pennsylvania EGU subject to CSAPR. 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, our limited 
disapproval of Pennsylvania's SIP submission concerning Cheswick's 
SO2 and NOX BART does not trigger mandatory 
sanctions under CAA section 179. Other specific requirements and the 
rationale for EPA's proposed action are explained in the NPR and will 
not be restated here.\6\ No adverse public comments were received on 
the NPR.
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    \6\ In the NPR, EPA found 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.
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III. Final Action

    EPA is finalizing 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 finalizing 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 emission limitations for EGUs in Pennsylvania, 
which includes Cheswick, no further action by EPA is required to 
address the limited disapproval. 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. This final action concludes that Cheswick's 
participation in CSAPR supersedes the previous SO2 and 
NOX BART determinations for Cheswick included in 
Pennsylvania's regional haze SIP.

IV. 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. Section 804, however, exempts from section 801 the 
following types of rules: Rules of particular applicability; rules 
relating to agency management or personnel; and rules of agency 
organization, procedure, or practice that do not substantially affect 
the rights or obligations of non-agency parties. 5 U.S.C. 804(3). 
Because this is a rule of particular applicability, EPA is not required 
to submit a rule report regarding this action under section 801.

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 May 26, 2015. 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 revising the SO2 and NOX BART 
emission limitations for Cheswick in Pennsylvania's regional haze SIP 
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, Intergovernmental relations, Nitrogen dioxide, Reporting and 
recordkeeping requirements, Sulfur oxides.

    Dated: March 10, 2015.
William C. Early,
Acting Regional Administrator, Region III.

    Therefore, 40 CFR part 52 is amended as follows:

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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 
a new entry following the existing entries for ``Regional Haze Plan'' 
to read as follows:


Sec.  52.2020  Identification of plan.

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

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    Name of non-regulatory SIP      Applicable geographic       State
             revision                        area          submittal date             EPA Approval date                    Additional explanation
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                                                                      * * * * * * *
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Regional Haze Plan................  Statewide............         3/25/14  3/27/15 [Insert Federal Register        Rulemaking pertains to Boiler No. 1
                                                                            citation].                              of the Cheswick Power Plant in
                                                                                                                    Allegheny County.
                                                                                                                   Limited approval removes SO2 and NOX
                                                                                                                    Best Available Retrofit Technology
                                                                                                                    limits. Limited disapproval relates
                                                                                                                    to the Federal Implementation Plan
                                                                                                                    at Sec.   52.2042(b) and (c).
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[FR Doc. 2015-06965 Filed 3-26-15; 8:45 am]
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