[Federal Register Volume 85, Number 115 (Monday, June 15, 2020)]
[Rules and Regulations]
[Pages 36161-36164]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10693]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2019-0469; FRL-10009-51-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; Regulatory Updates to Allegheny County Nonattainment New 
Source Review (NNSR) Permitting Requirements for 2012 Annual Fine 
Particulate Matter (PM2.5) National Ambient Air Quality Standard 
(NAAQS)

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 by the Commonwealth of Pennsylvania, 
on behalf of the Allegheny County Health Department (ACHD), on May 23, 
2019. The revision pertains to ACHD's amendments of the ACHD Rules and 
Regulations, Article XXI (Air Pollution Control) to implement Federal 
nonattainment new source review (NNSR) provisions for the 2012 annual 
fine particulate matter (PM2.5) national ambient air quality 
standard (NAAQS). EPA is approving these revisions to the Allegheny 
County portion of the Pennsylvania SIP in accordance with the 
requirements of the Clean Air Act (CAA).

DATES: This final rule is effective on July 15, 2020.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2019-0469. All documents in the docket are listed on 
the https://www.regulations.gov website. Although listed in the index, 
some information is not publicly available, e.g., 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 through 
https://www.regulations.gov, or please contact the person identified in 
the For Further Information Contact section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: Amy Johansen, Permits Branch (3AD10), 
Air & Radiation Division, U.S. Environmental Protection Agency, Region 
III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. The telephone 
number is (215) 814-2156. Ms. Johansen can also be reached via 
electronic mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On March 5, 2020 (85 FR 12882), EPA published a notice of proposed 
rulemaking (NPRM) for Allegheny County, Pennsylvania. In the NPRM, EPA 
proposed approval of amendments to ACHD Rules and Regulations, Article 
XXI (Air Pollution Control), sections 2102.06 (Major Sources Locating 
in or Impacting a Nonattainment Area), and 2101.20 (Definitions), 
herein referred to as Revision 90A. Specifically, Revision 90A 
establishes that emissions of volatile organic compounds (VOC) and 
ammonia are precursors to PM2.5 for new and modified major 
sources emitting PM2.5 in Allegheny County, Pennsylvania; 
establishes a significant impact level for PM2.5; proposes 
emission offset ratios for emissions of VOC and ammonia as 
PM2.5 precursors; and amends relevant definitions. The 
formal SIP revision was submitted by the Commonwealth of Pennsylvania, 
on behalf of ACHD, on May 23, 2019.
    EPA has revised the NAAQS for PM2.5 on multiple 
occasions, most recently in 2012. On December 14, 2012, the annual 
primary standard for PM2.5 was lowered from 15 micrograms 
per meter cubed ([mu]g/m\3\) to 12 [mu]g/m\3\. See 78 FR 3087 (January 
15, 2013). The existing 24-hour standards (primary and secondary) were 
retained at 35 [mu]g/m\3\, as was the annual secondary standard of 15 
[mu]g/m\3\. Upon promulgation of the 2012 PM2.5 NAAQS, EPA 
formally classified all of Allegheny County, Pennsylvania as moderate 
nonattainment for the 2012 annual PM2.5 standard. See 80 FR 
2206 (January 15, 2015).
    For areas designated as nonattainment for one or more NAAQS, the 
SIP must include preconstruction permit requirements for new or 
modified major stationary sources of such nonattainment pollutant(s), 
commonly referred to as ``Nonattainment New Source Review.'' See CAA 
section 172(c)(5).
    ACHD's Revision 90A revises NNSR permit requirements for major 
sources of PM2.5. Specifically, ACHD's Article XXI has been 
amended to implement additional provisions pertaining to 
PM2.5 precursors, as promulgated in EPA's rule entitled Fine 
Particulate Matter National Ambient Air Quality Standards: State 
Implementation Plan Requirements (2016 Implementation Rule). See 81 FR 
58010 (August 24, 2016).
    As required by EPA's 2016 Implementation Rule, which implements the 
D.C. Circuit Court's January 2013 decision in NRDC v. EPA,\1\ areas 
classified as nonattainment for any PM2.5 NAAQS are required 
to comply with the provisions of CAA subpart 4 section 189(e) that 
require the control of major sources of PM10 precursors (and 
hence under the 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.'' \2\ With respect the NNSR permitting requirements, the 2016 
Implementation Rule therefore

[[Page 36162]]

amended the definitions in 40 CFR 51.165(a)(1) for (1) ``regulated NSR 
pollutant'' with regard to PM2.5 precursors; (2) ``major 
stationary source'' with regard to major sources locating in 
PM2.5 nonattainment areas classified as moderate and 
serious; and (3) ``significant'' with regard to emissions of 
PM2.5 precursors.
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    \1\ 706 F.3d 428 (D.C. Cir. 2013).
    \2\ This requirement was codified in 40 CFR 51.165(a)(13). See 
81 FR 58010 (August 24, 2016).
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II. Summary of SIP Revision and EPA Analysis

A. Summary of SIP Revision

    Article XXI addresses NNSR permit requirements for major sources of 
PM2.5. ACHD's Revision 90A has been amended to implement 
additional provisions pertaining to precursors, as promulgated in EPA's 
final 2016 Implementation Rule.

B. EPA's Proposed Action

    At proposal, EPA evaluated the revised portions of Article XXI to 
determine if the revisions meet current applicable requirements for a 
PM2.5 NNSR permit program, as revised by EPA's 2016 
Implementation Rule. Section 2102.06--(1) contains revisions to clarify 
that Article XXI applies to major polluting facilities that will emit 
PM2.5 or its precursors in areas designated as nonattainment 
for PM2.5; (2) the definition of ``major facility'' has been 
updated to include a 70 tons per year (tpy) emissions threshold for 
PM2.5 and all precursors to PM2.5; (3) the 
definition of ``regulated NSR pollutant'' has been updated to include 
sulfur dioxide (SO2), VOC, and ammonia as PM2.5 
precursors in all PM2.5 nonattainment areas; (4) revisions 
were made to the definition of ``significant'' to include emission 
rates for PM2.5 at 10 tpy and emission rates for 
PM2.5 precursors as follows: 40 tpy of SO2, 40 
tpy of VOC, 40 tpy of ammonia, and 40 tpy of nitrogen oxides 
(NOX); and (5) revisions were made to clarify that under 
Article XXI, ``significance level(s)'' shall mean ``significant air 
quality impact'' as defined under Article XXI. EPA proposed to find 
these revisions approvable and consistent applicable requirements for a 
PM2.5 NNSR permit program, as revised by the 2016 
Implementation Rule.
    Section 2102.06(b)(3)--Emission Offsets, establishes offset ratios 
for VOC and ammonia at a ratio of 1:1 for flue emissions and fugitive 
emissions in Allegheny County. EPA also proposed to find the addition 
of offset ratios to be approvable, as they match what is already in 
Article XXI for PM2.5 and NOX and SO2. 
Further, Section 2101.20--Definitions, was amended to add values to the 
table of ``significant air quality impact'' levels under 40 CFR 
51.165(b)(2) for PM2.5 at 0.2[mu]g/m\3\ for the annual 
averaging time and 1.2 [mu]g/m\3\ for the 24-hour averaging time. As 
ACHD's annual averaging time is more stringent than what EPA requires 
in 40 CFR part 51.165(b)(2), EPA therefore proposed to find this more 
stringent requirement approvable.
    Other specific provisions of SIP Revision 90A and the rationale for 
EPA's proposed action are explained in the NPRM and its associated 
technical support document (TSD) and will not be restated here.

III. Public Comments and EPA Responses

    EPA received two comments on the March 5, 2020 NPRM. See 85 FR 
12882. A summary of the comments and EPA's responses are discussed in 
this section of the preamble. A copy of the comments can be found in 
the docket for this rulemaking action.
    Comment 1: The first comment stated that EPA should disapprove 
ACHD's SIP submission because ``it lacks the rules that other public 
entities are required to meet.'' The comment also suggested that 
``because the commission operates in a more limited capacity and the 
rules for the governing body are less rigid, the law can be used to 
prevent Allegheny County from complying with SIP requirements.'' The 
comment also noted that the commission in 2013 acknowledged that it had 
found a way to have regulators use the agency's own rules to change a 
law (during a time period in which SIP went through changes across the 
nation).'' The comment concluded by saying, ``the agency never made a 
recommendation to cancel the vote.''
    Response 1: The commenter has not identified any information to 
support its assertion that EPA should disapprove ACHD's 2012 
PM2.5 NNSR SIP submission. In particular, the commenter 
failed to identify any rules the Allegheny County SIP lacks or how any 
provisions adopted by ACHD are inconsistent with the applicable 
regulatory requirements. The Administrative Procedures Act does not 
require that EPA change its decision based on unsupported ``comments 
consisting of little more than assertions that in the opinions of the 
commenters the agency got it wrong.,'' International Fabricare 
Institute v. EPA, 972 F.2d 384 (D.C. Cir. 1992). EPA's review of the 
2012 PM2.5 NNSR SIP submission, as explained in the NPRM and 
TSD for this rulemaking action, shows that Allegheny County is meeting 
the applicable requirements found in EPA's regulations, as revised by 
the 2016 Implementation Rule, and the CAA. To the extent the commenter 
is alleging concerns with respect to implementation of the SIP, the 
commenter again provides insufficient details regarding these issues. 
For example, the commenter does not identify with any specificity what 
2013 action it believes is relevant or what vote was allegedly 
cancelled. More importantly, concerns regarding implementation are 
outside the scope of EPA's SIP review, which is focused under section 
110(k) on whether the submission meets the applicable requirements of 
the CAA. See, e.g., Montana Environmental Information Center v. Thomas, 
902 F.3d 971, 978-79 (9th Cir. 2018). SIP approval was not arbitrary 
and capricious where EPA reasonably interpreted submission as facially 
meeting the applicable requirements despite alleged implementation 
concerns. Accordingly, the commenter has not identified any basis for 
EPA to reconsider its approval of Revision 90A into the Allegheny 
County portion of the Pennsylvania SIP.
    Comment 2: The second comment stated that EPA must not approve 
Revision 90A ``because Ammonia (sic) is a harmful precursor that is not 
regulated by EPA.'' The comment further asserted that EPA does not have 
the ``authority under the Clean Air Act of 1990 to regulate Ammonia 
(sic) since it is not a NAAQS pollutant.'' Lastly, the comment suggests 
that EPA should disregard this rulemaking action and move to make 
ammonia a criteria pollutant, as it is a ``dangerous and extremely 
harmful pollutant.''
    Response 2: EPA agrees with the commenter's assertion that ammonia 
is a precursor pollutant that contributes to the formation of 
PM2.5. See NRDC, 706 F.3d at 435, n. 7 (``Ammonia is a 
precursor to fine particulate matter, making it a precursor to both 
PM2.5 and PM10.''). However, EPA disagrees with 
the comment that it does not have the authority to regulate ammonia 
under the CAA. To the contrary, the D.C. Circuit Court's NRDC decision 
held that areas classified as nonattainment for any PM2.5 
NAAQS are required to comply with the provisions of CAA subpart 4 
section 189(e) that require the control of major stationary sources of 
precursors except where the Administrator determines that such sources 
do not contribute significantly to levels which exceed the standard in 
the area. The NNSR permit program for PM2.5 thus 
presumptively applies to emissions of all precursors, including 
ammonia, as well as direct PM2.5 emissions from

[[Page 36163]]

major sources in Allegheny County.\3\ This indicates that, contrary to 
the commenter's assertion, the CAA does not limit EPA's authority to 
only regulating the direct emissions of criteria pollutants for which 
NAAQS are promulgated. Rather, even though ammonia is not identified 
under the statute as a criteria pollutant, EPA is not only authorized, 
but required to regulate ammonia as a PM2.5 precursor under 
section 189(e).
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    \3\ The provisions of subpart 4, do not define the term 
``precursor'' for purposes of PM2.5, nor does subpart 4 
explicitly require the control of any specifically identified 
particulate matter precursor. The statutory definition of ``air 
pollutant,'' however, provides that the term ``includes any 
precursors to the formation of any air pollutant, to the extent the 
Administrator has identified such precursor or precursors for the 
particular purpose for which the term ``air pollutant'' is used.'' 
See CAA Section 302(g). EPA has identified the main precursor gases 
associated with PM2.5 formation as SO2, 
NOX, VOC, and ammonia.
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    EPA's review of SIP Revision 90A, as explained in the NPRM and TSD 
for this rulemaking action, shows that Allegheny County is meeting the 
applicable requirements found in EPA's 2016 Implementation Rule, which 
implements the NRDC decision, and the CAA. Therefore, EPA is finalizing 
its approval of Revision 90A.

IV. Final Action

    EPA is approving amendments to ACHD Rules and Regulations, Article 
XXI (Air Pollution Control), sections 2102.06 (Major Sources Locating 
in or Impacting a Nonattainment Area), and 2101.20 (Definitions) as a 
revision to the Allegheny County portion of the Pennsylvania SIP.

V. Incorporation by Reference

    In this document, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference of ACHD's 
Article XXI, sections 2102.06, and 2101.20, as described in the 
amendments to 40 CFR part 52 set forth below. EPA has made, and will 
continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region III Office (please contact 
the person identified in the For Further Information Contact section of 
this preamble for more information). Therefore, these materials have 
been approved by EPA for inclusion in the SIP, have been incorporated 
by reference by EPA into that plan, are fully federally enforceable 
under sections 110 and 113 of the CAA as of the effective date of the 
final rulemaking of EPA's approval, and will be incorporated by 
reference in the next update to the SIP compilation.\4\
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    \4\ 62 FR 27968 (May 22, 1997).
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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 Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866.
     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 14, 2020. 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 approving NNSR requirements under the 2012 
PM2.5 NAAQS 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, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Dated: May 13, 2020.
Cosmo Servidio,
Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

[[Page 36164]]

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 A--General'' by adding a twelfth entry for ``2101.20''; 
and
0
b. Under ``Part B--Permits Generally'' by revising entry ``2102.06''.
    The addition and revision read as follows:


Sec.  52.2020   Identification of plan.

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

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    Article XX or XXI                                 State                             Additional explanation/
        citation              Title/subject      effective date    EPA approval date    Sec.   52.2063 citation
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                                                 Part A--General
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                                                  * * * * * * *
2101.20.................  Definitions..........          3/3/19  6/15/20, [insert      Adding ``Significant air
                                                                  Federal Register      quality impact'' for
                                                                  citation].            PM2.5.
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                                            Part B--Permits Generally
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                                                  * * * * * * *
2102.06.................  Major Sources                  3/3/19  6/15/20, [insert      Adding requirements for
                           Locating in or                         Federal Register      2012 PM2.5 NAAQS, as it
                           Impacting a                            citation].            relates to NNSR.
                           Nonattainment Area.                                          Specifically, SO2, NOX,
                                                                                        VOC, and ammonia are
                                                                                        considered PM2.5
                                                                                        precursors in Allegheny
                                                                                        County, PA.
                                                                                       Previous approval was
                                                                                        March 30, 2015. Docket
                                                                                        No. EPA-R03-OAR-2015-
                                                                                        0636.
 
                                                  * * * * * * *
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[FR Doc. 2020-10693 Filed 6-12-20; 8:45 am]
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