[Federal Register Volume 80, Number 121 (Wednesday, June 24, 2015)]
[Rules and Regulations]
[Pages 36239-36242]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-15458]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2014-0886; FRL-9929-40-Region-3]


Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; Revision to Allegheny County Regulations for Establishing 
Permit Fees

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a State 
Implementation Plan (SIP) revision submitted by the Commonwealth of 
Pennsylvania. This revision pertains to the Air Pollution Control 
portion of the Allegheny County Health Department (ACHD) rules and 
regulations and consists of changes to the regulations establishing 
installation permit application and administration fees and open 
burning permit application fees. EPA is approving these revisions to 
Pennsylvania's SIP in accordance with the requirements of the Clean Air 
Act (CAA).

DATES: This final rule is effective on July 24, 2015.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2014-0886. 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; Allegheny County Health 
Department, Bureau of Environmental Quality, Division of Air Quality, 
301 39th Street, Pittsburgh, Pennsylvania 15201.

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

SUPPLEMENTARY INFORMATION: 

I. Background

    On March 9, 2015 (80 FR 12374), EPA published a document in the 
Federal Register (NPR) proposing to approve the August 30, 2010 SIP 
revision submittal from the Commonwealth of Pennsylvania through the 
Pennsylvania Department of Environmental Protection (PADEP). The SIP 
revision pertains to the Air Pollution Control portion of ACHD's rules 
and regulations and consists of changes to the ACHD regulations 
establishing installation permit application and administration fees 
and open burning permit application fees. EPA received one comment on 
the NPR. A summary of the comment and EPA's response are provided in 
Section III of this document.

II. Summary of SIP Revision

    The SIP revision consists of changes to ACHD regulations in Article 
XXI for installation permit fees and open burning permit fees, 
including revisions to section 2102.10, entitled ``Installation Permit 
Application and Administration Fees,'' and to section 2105.50, entitled 
``Open Burning and Administration Fees.'' The changes replace 
provisions containing fixed monetary amounts for permit fees provided 
for installation and open burning permits in sections 2102.10 and 
2105.5 with language that

[[Page 36240]]

provides for the Allegheny County Council to establish the amount of 
the given fee based on consideration of the degree of technical and 
regulatory difficulty in processing each type of installation permit. 
The revisions to Article XXI sections 2102.10 and 2105.50 include new 
permit fee provisions for the following permit types: Permits required 
by the Prevention of Significant Deterioration regulations; permits 
issued for new major sources and for major modifications to sources 
locating in or impacting a non-attainment area; permits required by 
existing standards, such as the New Source Performance Standards and 
the National Emission Standards for Hazardous Air Pollutants; permits 
in which ACHD establishes the Maximum Achievable Control Technology for 
a source; permits for any source requiring an installation permit but 
not subject to any of the previous requirements; and general 
installation permits. The specific revisions to requirements in Article 
XXI sections 2102.10 and 2105.50 pertaining to fees for installation 
and open burning permits in Allegheny County for proposed approval are 
explained in the NPR and will not be restated here. See 80 FR at 12374.

III. Public Comments and EPA Responses

    EPA received one anonymous comment on the proposed approval for the 
Pennsylvania SIP of revisions to ACHD's regulations. A summary of the 
comment and our response follows.
    Comment: The commenter expresses support for the action proposed by 
the EPA to include the revised Allegheny County regulations in the 
Pennsylvania SIP; however, the commenter states that in section III of 
the NPR, EPA's statement that section 110(a)(2)(L)(i) and (ii) requires 
SIPs to include fees sufficient to cover the costs of reviewing and 
acting upon a permit application is incorrect. The commenter points out 
that CAA section 110(a)(2)(L)(i) and (ii) do not require SIPs to 
``include'' fees; rather 110(a)(2)(L) states SIPs must require owners 
and operators to ``pay'' fees. According to the commenter, if the 
statement EPA made was correct, it would mean that the revisions EPA is 
acting upon do not satisfy the requirements of section 110(a)(2)(L)(i) 
and (ii) because the proposed revisions remove the fixed monetary fee 
for certain permits and therefore the SIP would not include a fee and 
thus would not meet section 110(a)(2)(L)(i) and (ii). To further 
support the argument, the commenter cites the September 13, 2013 
Memorandum from Stephen D. Page, Director, Office of Air Quality 
Planning and Standards, Guidance on Infrastructure State Implementation 
Plan Elements Under CAA Sections 110(a)(1) and 110(a)(2) 
(Infrastructure SIP Guidance), in which EPA discusses section 
110(a)(2)(L) and states that ``the fee program is not required to be 
part of the EPA approved SIP.''
    Response: EPA appreciates the commenter's support for the action 
approving this SIP revision. EPA also agrees with the commenter that 
fee programs included in SIPs to comply with section 110(a)(2)(L) do 
not have to require a specific dollar amount for a permit or other 
approval. The Agency also agrees that the ACHD fee program provisions 
that we approve into the SIP today are consistent with CAA section 
110(a)(2)(L). We do not agree with the commenter's characterization of 
the Agency's interpretation of the statute as explained below.
    CAA section 110(a)(2)(L) regarding permit fee requirements for SIPs 
provides in pertinent part that the SIP shall ``require the owner and 
operator of each major stationary source to pay the permitting 
authority, as a condition of any permit required under this chapter, a 
fee sufficient to cover'' the reasonable costs of reviewing and acting 
on permit applications and the reasonable costs of implementing and 
enforcing the terms and conditions of any such permits. Section 
110(a)(2)(L) further requires such provisions for SIPs until the major 
source fee requirements are superseded with respect to such sources by 
EPA's approval of a fee program under Title V of the CAA.\1\
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    \1\ EPA's Infrastructure SIP Guidance states that the EPA-
approved title V fee program is not required to be included in the 
SIP and then refers state air agencies to EPA regional offices to 
address section 110(a)(2)(L) requirements for permit fee programs 
addressing permits required by Title I of the CAA, such as permits 
required upon construction or modification of certain sources.
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    In the NPR, EPA proposed to approve for the Pennsylvania SIP 
certain revisions to Allegheny County's regulations which deleted fixed 
fees for certain required installation permits and open burning permits 
from the ACHD regulations and replaced such fixed fees with provisions 
stating that installation and open burning permit fees required for 
owners and operators of certain pollutant emitting stationary sources 
would be set by Allegheny County factoring in the degree of technical 
and regulatory difficulty for categories of installation permits. EPA 
proposed to approve the revisions as meeting requirements for permit 
fees in CAA section 110(a)(2)(L). In the proposal, EPA inadvertently 
did not include the verbatim text of CAA section 110(a)(2)(L) in 
providing the explanation for our proposed approval of Allegheny 
County's regulations. However, the revisions to sections 2102.10 and 
2105.50 of Article XXI of Allegheny County's regulations satisfy CAA 
section 110(a)(2)(L) because the revised provisions in sections 2102.10 
and 2015.50 clearly require the owner and operator of certain air 
pollutant-emitting sources to pay to Allegheny County, the local 
permitting authority, a fee sufficient to cover reasonable costs to 
review and act upon permit applications and reasonable costs for 
Allegheny County to implement and enforce permit terms and conditions. 
The revisions to sections 2102.10 and 2105.50 simply remove a fixed 
monetary fee that owners and operators of certain sources would need to 
pay for installation and open burning permits and replace the fixed fee 
with applicable criteria for Allegheny County to determine the value of 
the fee for owners or operators to obtain required installation and 
open burning permits. The provisions of Allegheny County's regulations 
still require the payment of a fee for certain installation and open 
burning permits which would meet requirements in section 110(a)(2)(L) 
for SIPs to include provisions for payment of such fees.
    EPA is unsure of the relevance of the quote from EPA's 
Infrastructure SIP Guidance included in the comment. The Infrastructure 
SIP Guidance at pages 56-57 states: ``Currently, every state has an 
EPA-approved fee program under CAA Title V. However, the fee program is 
not required to be part of the EPA approved SIP.'' This language 
clearly refers to the EPA-approved fee program under CAA Title V for 
operating permits required by Title V of the CAA which may supersede 
certain requirements for SIPs to include fee requirements for permits 
required by the CAA. Pennsylvania has an EPA-approved Title V program 
and an EPA-approved Title V fee program, but the Allegheny County 
regulations we proposed to approve in the NPR are not part of the 
Pennsylvania Title V program. Sections 2102.10 and 2105.50 of Article 
XXI of Allegheny County's regulations relate to fees for certain 
installation and open burning permits which are required by Allegheny 
County prior to installation of certain pollutant emitting sources or 
open burning operations. Such permits are required by Allegheny County 
to implement requirements in Title I of the CAA, not Title V. These 
fees provide funds for Allegheny County to review, implement and 
enforce permits required

[[Page 36241]]

by Title I of the CAA that are not funded under the state's Title V 
permit program. Thus, the language of the Infrastructure SIP Guidance 
included in the comment is not applicable to this action. EPA proposed 
in the NPR to approve the revisions to sections 2102.10 and 2105.50 of 
Article XXI because the regulations require owners or operators of 
certain stationary sources to pay permit fees as a precondition to 
receiving an installation or open burning permit. These regulations 
therefore satisfy requirements in section 110(a)(2)(L) that the SIP 
require owners and operators to pay the permitting authority a fee 
sufficient to cover reasonable costs of reviewing, acting on, 
implementing and enforcing permits required by the CAA, including 
installation or construction permits required by Title I of the CAA.

IV. Final Action

    EPA is approving as a revision to the Pennsylvania SIP the August 
30, 2010 SIP submittal from PADEP consisting of changes to the ACHD 
regulations establishing installation permit application and 
administration fee requirements and open burning permit application fee 
requirements in Allegheny County.

V. Incorporation by Reference

    In this, the EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, the EPA is finalizing the incorporation by reference of the 
Allegheny County Regulations described in the amendments to 40 CFR part 
52 set forth below. The EPA has made, and will continue to make, these 
documents generally available electronically through 
www.regulations.gov and/or in hard copy at the appropriate EPA office 
(see the ADDRESSES section of this preamble for more information).

VI. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by August 24, 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 pertaining to the Air Pollution Control portion of 
the Allegheny County Rules and Regulations, which revises the 
regulations establishing installation permit application and 
administration fees, as well as open burning permit application fees 
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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: June 11, 2015.
William C. Early,
Acting Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart NN--Pennsylvania

0
2. In Sec.  52.2020, the table in paragraph (c)(2) is amended by:
0
a. Under Part B, revising the entry for ``2102.10''; and
0
b. Under Part E, subpart 5, revising the entry for ``2105.50''.
    The revisions read as follows:


Sec.  52.2020  Identification of plan.

* * * * *
    (c) * * *
    (2) * * *

[[Page 36242]]



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                                                            State                                 Additional
   Article XX or XXI citation         Title/Subject       effective     EPA Approval date     explanation/ Sec.
                                                             date                              52.2063 citation
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                                            Part B--Permits Generally
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                                                  * * * * * * *
2102.10.........................  Installation Permit      7/26/2009  6/24/2015 [Insert
                                   Application And                     Federal Register
                                   Administration Fees.                citation].
 
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                                 Part E--Source Emission and Operating Standards
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                              Subpart 5--Open Burning and Abrasive Blasting Sources
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2105.50 (except paragraph .50.d)  Open Burning.........    7/26/2009  6/24/2015 [Insert
                                                                       Federal Register
                                                                       citation].
 
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[FR Doc. 2015-15458 Filed 6-23-15; 8:45 am]
 BILLING CODE 6560-50-P