[Federal Register Volume 86, Number 176 (Wednesday, September 15, 2021)]
[Proposed Rules]
[Pages 51315-51318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-19818]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2017-0290; FRL-8942-01-R3]


Air Plan Partial Disapproval; Commonwealth of Pennsylvania; 
Reasonably Available Control Technology Regulations for the 1997 and 
2008 Ozone National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: As a result of the Third Circuit Court of Appeals' decision, 
dated August 27, 2020, in Sierra Club v. U.S. EPA, No. 19-2562 (3rd 
Cir. 2020), the Environmental Protection Agency (EPA) is proposing to 
partially disapprove a specific part of a state implementation plan 
(SIP) revision that had been previously approved by EPA. On May 19, 
2019, EPA fully approved certain parts of a SIP revision submitted by 
the Commonwealth of Pennsylvania to address reasonably available 
control technology (RACT) for the 1997 and 2008 ozone national ambient 
air quality standards (NAAQS), and conditionally approved other parts 
of that submission. The court vacated EPA's approval of a portion of 
the SIP revision, as discussed below, and ordered that EPA either 
approve a new SIP revision addressing the court's decision or 
promulgate a federal implementation plan (FIP) within two years. EPA is 
therefore proposing to disapprove the portion of the SIP submission 
addressed by the court's decision. This action is being taken under the 
Clean Air Act (CAA).

DATES: Written comments must be received on or before October 15, 2021.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2017-0290 at https://www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, follow 
the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be confidential business information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Dave Talley, Planning & Implementation 
Branch (3AD30), Air & Radiation Division, U.S. Environmental Protection 
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. 
The telephone number is (215) 814-2117. Mr. Talley can also be reached 
via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION: On May 16, 2016, the Pennsylvania Department 
of Environmental Protection (PADEP) submitted a revision to its SIP for 
RACT Regulations for the 1997 and 2008 ozone NAAQS.

I. Background

    On May 9, 2019, EPA published a final action fully approving 
certain

[[Page 51316]]

provisions of Pennsylvania's May 16, 2016 SIP revision submission to 
implement RACT for both the 1997 and 2008 Ozone NAAQS (hereafter the 
``RACT II rule''), and conditionally approving other provisions of the 
SIP revision. 84 FR 20274 (May 9, 2019). Specifically, EPA's action 
fully approved ``25 Pa. Code sections 121.1, 129.96, 129.97, and 
129.100 as meeting certain aspects of major stationary source RACT in 
CAA section 172, 182, and 184 for the 1997 and 2008 ozone NAAQS 
submitted May 16, 2016'' and conditionally approved ``25 Pa. Code 
sections 129.98 and 129.99 based on the commitment provided by 
Pennsylvania to submit additional SIP revisions to address the 
deficiencies identified by EPA in the May 16, 2016 SIP revision.'' Id. 
at 20290. The RACT requirements in CAA section 182(b)(2) apply to all 
ozone nonattainment areas classified as Moderate or higher (Serious, 
Severe, or Extreme). Section 184(b)(1)(B) of the CAA also applies RACT 
to all areas located within ozone transport regions established 
pursuant to section 184 of the CAA. The entire Commonwealth of 
Pennsylvania is part of the Ozone Transport Region (OTR) established 
under section 184 of the CAA and therefore subject statewide to the 
RACT requirements. The May 16, 2016 SIP submittal was intended to 
satisfy CAA sections 182(b)(2)(C), 182(f), and 184 for the 1997 and 
2008 8-hour ozone NAAQS for all major sources of nitrogen oxides 
(NOX) and volatile organic compounds (VOCs) in Pennsylvania 
not subject to control techniques guidelines (CTG), with a few 
exceptions not relevant to this action.
    The Sierra Club commented on EPA's proposed approval of the RACT II 
rule, and following EPA's final approval, filed a petition for review 
with the U.S. Third Circuit Court of Appeals. The petition challenged 
EPA's approval of that portion of the RACT II rule applicable to coal-
fired electricity generating units (EGUs) equipped with selective 
catalytic reduction (SCR) for control of NOX, which is a 
precursor pollutant to ozone regulated under CAA section 182. 
Specifically, the petition challenged EPA's approval of the presumptive 
RACT NOX limit for these EGUs of 0.12 pounds of 
NOX per Million British Thermal Units (MMBtu) of heat input 
(lbs/MMBtu) when the inlet temperature to the SCR was 600 degrees 
Fahrenheit or above, found at 25 Pa. Code 129.97(g)(1)(viii); the 
application of the less stringent NOX limits of 25 Pa Code 
129.97(g)(1)(vi) to EGUs with SCR when the inlet temperature to the SCR 
was below 600 degrees Fahrenheit; \1\ and the failure of the RACT II 
rule at 25 Pa. Code 129.100(d) to specifically require these EGUs to 
keep temperature data for the inlet temperature to the SCRs and report 
that data to PADEP.
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    \1\ 25 Pa Code 129.97(g)(1)(vi) applies to coal-fired combustion 
units with a heat input greater than 250 million MMBtu/hr that do 
not have SCR.
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    On August 27, 2020, the Third Circuit found for the Sierra Club on 
all three of these issues, vacated the Agency's approval of the SIP 
submission on each of these three pieces of the Pennsylvania plan as it 
pertained to coal-fired EGUs equipped with SCRs, and remanded to the 
Agency. The court further stated that ``[o]n remand, the agency must 
either approve a revised, compliant SIP within two years or formulate a 
new federal implementation plan.'' Sierra Club, 972 F.3d 290, 309 (3d 
Cir. 2020).

II. Summary of SIP Provisions Being Proposed for Disapproval

    The purpose of this action is to propose a partial disapproval for 
those portions of Pennsylvania's RACT II SIP for which the Third 
Circuit vacated EPA's approval. In light of the court's order regarding 
EPA actions on remand, EPA is proposing this action in part to ensure 
that we have authority to promulgate a FIP if Pennsylvania does not 
submit a timely or approvable SIP revision addressing the Third 
Circuit's decision.
    The specific section of Pennsylvania's regulation in the SIP that 
is at issue here is 25 Pa. Code 129.97(g)(1)(viii), which sets a 
``presumptive'' RACT limit for coal-fired combustion units equipped 
with SCR. The court held that EPA's approval of 25 Pa. Code 
129.97(g)(1)(viii) was arbitrary and capricious because the record did 
not support EPA's finding that the emission limit of 0.12 lb 
NOX/MMBtu of heat input was RACT for these EGU sources, 
particularly in light of submitted evidence that EGUs in Pennsylvania 
regulated by 25 Pa. Code 129.97(g)(1)(viii) had achieved much lower 
emission rates for NOX in the past, and that other states 
had adopted lower RACT NOX limits for coal-fired sources. 
Sierra Club at 299-303. In addition, the court held that EPA's approval 
of the 600 degree Fahrenheit temperature ``exemption'' to the 0.12 lb/
MMBtu limit for NOX in 25 Pa Code 129.97(g)(1)(viii) was 
arbitrary and capricious because the record failed to support the need 
for the 600 degree exemption or explain why 600 degrees was chosen as 
the threshold for the exemption. Id. at 303-307. Thus, the court 
vacated EPA's approval of these two provisions, both of which are only 
found in 25 Pa. Code 129.97(g)(1)(viii). See Id. at 309.
    Regarding the reporting and record keeping requirement of 25 Pa. 
Code 129.100(d), the court also found EPA's approval of the specific 
SIP revisions discussed above to be arbitrary and capricious based upon 
the lack of a specific record keeping and reporting requirement for the 
600 degree inlet temperature exemption to the SCR. See Id. 
Specifically, the court held that ``[b]ecause the SIP's 600-degree 
threshold necessarily depends upon accurate temperature reporting, the 
EPA's approval of such inadequate requirements on this record was 
arbitrary and capricious.'' Id. at 309. Lacking evidence in the record 
that this language would require sources subject to 25 Pa. Code 
129.97(g)(1)(viii) to keep specific SCR temperature inlet data, report 
that data to PADEP, and make it available to the public, the court 
agreed with the Sierra Club that in this scenario the terms are too 
vague to be enforceable. Id. at 308. Further, the court explained that 
``[t]he combination of this lack of mandatory reporting and the 
temperature waiver created a potent loophole for polluters to walk 
through.'' Id. at 297. For these reasons, EPA now finds that the 
previously approved recordkeeping and reporting provisions are 
inadequate in this specific context, which further supports this 
proposed partial disapproval.
    EPA has been and will continue to work with PADEP to address 
revised RACT determinations during the state's development of the SIP 
revision in response to the court decision.

III. Proposed Action

    Consistent with the Third Circuit's decision, and based on the 
reasoning contained therein, EPA is proposing under CAA section 
110(k)(3) to revise its full approval of certain provisions of the 
Pennsylvania RACT II rule that were vacated and remanded to EPA by the 
Third Circuit Court of Appeals. EPA's proposed partial disapproval of 
this previously-approved SIP revision is limited to the regulatory 
provision related to presumptive RACT requirements for coal-fired 
combustion units at EGUs equipped with SCR, specifically 25 Pa. Code 
129.97(g)(1)(viii). Because we are now proposing to disapprove 25 Pa. 
Code 129.97(g)(1)(viii), and the 600 degree temperature threshold along 
with the 0.12 lbs/MMBtu limit is contained entirely within this 
section, no additional federal regulatory revisions are necessary to 
address the court's holding that EPA's approval of the

[[Page 51317]]

record-keeping requirement was arbitrary and capricious.
    Section 110(c)(1) of the CAA requires the Administrator to 
promulgate a FIP at any time within two years after the Administrator 
finds that a state has failed to make a required SIP submission, finds 
a SIP submission to be incomplete, or disapproves a SIP submission, 
unless the state corrects the deficiency, and the Administrator 
approves the SIP revision, before the Administrator promulgates a FIP. 
Therefore, if EPA finalizes this proposed partial disapproval, EPA will 
be obligated under CAA section 110(c)(1) to promulgate a FIP within two 
years after the effective date of the partial disapproval, unless the 
State submits and the EPA approves SIP revisions to correct the 
identified deficiencies in the RACT II rule before EPA promulgates the 
FIP. Notwithstanding this timeframe established under CAA section 
110(c)(1) for EPA's promulgation of a FIP, the Third Circuit has 
ordered the EPA to issue a FIP within two years of the date of its 
decision in Sierra Club, 972 F.3d 290, 309 (3rd Cir., August 27, 2020), 
if the Agency has not approved a SIP correcting the identified 
deficiencies in the RACT II rule within this timeframe. In addition, 
final partial disapproval would trigger mandatory sanctions under CAA 
section 179 and 40 CFR 52.31 unless the State submits, and EPA 
approves, SIP revisions that correct the identified deficiencies in the 
RACT II rule within 18 months of the effective date of the final 
partial disapproval action.
    EPA is soliciting public comments on our proposed partial 
disapproval as explained herein. We will accept comments from the 
public on this proposal for the next 30 days.

IV. Statutory and Executive Order Reviews

Executive Orders 12866 and 13563: Regulatory Planning and Review

    Under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 
13563 (76 FR 3821, January 21, 2011), this action is not a 
``significant regulatory action'' and, therefore, is not subject to 
review by the Office of Management and Budget.

Executive Order 13771: Reducing Regulations and Controlling Regulatory 
Costs

    This action is not an Executive Order 13771 regulatory action 
because this action is not significant under Executive Order 12866.

Paperwork Reduction Act

    This rulemaking does not impose an information collection burden 
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.).

Regulatory Flexibility Act

    This action merely proposes to disapprove state requirements as not 
meeting Federal requirements and imposes no additional requirements 
beyond those imposed by state law. Accordingly, the Administrator 
certifies that this rulemaking will not have a significant economic 
impact on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.).

Unfunded Mandates Reform Act

    Because this rulemaking proposes to disapprove pre-existing 
requirements under state law and does not impose any additional 
enforceable duty beyond that required by state law, it 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).

Executive Order 13132: Federalism

    This action also does not have Federalism implications because it 
does not have substantial direct effects on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132 (64 FR 43255, August 
10, 1999). This action merely proposes to disapprove a state 
requirement and does not alter the relationship or the distribution of 
power and responsibilities established in the CAA.

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rulemaking does not have tribal implications and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000).

Executive Order 13045: Protection of Children From Environmental Health 
and Safety Risks

    This rulemaking also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it proposes to 
disapprove a state rule.

Executive Order 13211: Actions That Significantly Affect Energy Supply, 
Distribution, or Use

    Because it is not a ``significant regulatory action'' under 
Executive Order 12866 or a ``significant energy action,'' this action 
is also not subject to Executive Order 13211 (66 FR 28355, May 22, 
2001).

National Technology Transfer Advancement Act

    In reviewing state submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence of a prior existing requirement for the state 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a state submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a state 
submission, to use VCS in place of a state submission that otherwise 
satisfies the provisions of the CAA. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply.

Executive Order 12898: Federal Actions To Address Environmental Justice 
in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (February 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States. EPA lacks the discretionary authority 
to address environmental justice in this action. In reviewing SIP 
submissions, EPA's role is to approve or disapprove state choices, 
based on the criteria of the CAA.
    Accordingly, this action proposing partial disapproval of 
Pennsylvania's RACT regulations for the 1997 and 2008 ozone NAAQS, 
merely disapproves certain state requirements for inclusion into the 
SIP under section 110 of the CAA and will not in-and-of itself create 
any new requirements. Accordingly, it does not provide EPA with the 
discretionary authority to address, as

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appropriate, disproportionate human health or environmental effects, 
using practicable and legally permissible methods, under Executive 
Order 12898.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: September 8, 2021.
Diana Esher,
Acting Regional Administrator, Region III.
[FR Doc. 2021-19818 Filed 9-14-21; 8:45 am]
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