[Federal Register Volume 87, Number 157 (Tuesday, August 16, 2022)]
[Rules and Regulations]
[Pages 50257-50259]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-17579]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2017-0290; FRL-10115-02-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: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to disapprove a specific part of a state implementation plan 
(SIP) revision that was 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 U.S. Court of Appeals for the Third Circuit 
vacated EPA's approval of a portion of the SIP revision, as discussed 
below. EPA is now disapproving the portion of the SIP submission 
addressed by the court's decision. This action is being taken under the 
Clean Air Act (CAA).

DATES: This final rule is effective on September 15, 2022.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2017-0290. 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: Sean Silverman, Planning & 
Implementation Branch (3AD30), Air & Radiation Division, U.S. 
Environmental Protection Agency, Region III, 1600 John F. Kennedy 
Boulevard, Philadelphia, Pennsylvania 19103. The telephone number is 
(215) 814-5511. Mr. Silverman can also be reached via electronic mail 
at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On May 9, 2019, EPA published a final action fully approving 
certain 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 [Pennsylvania 
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 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 filed a petition for review with the U.S. Third 
Circuit Court of Appeals. The petition challenged EPA's approval of the 
portion of the RACT II rule applicable to coal-fired electricity 
generating units (EGUs) equipped with selective catalytic reduction 
(SCR) for control of NOX. For these EGUs, the petition 
challenged EPA's approval of the presumptive RACT NOX limit 
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, the less stringent NOX 
limits of 25 Pa. Code 129.97(g)(1)(vii) when the SCR inlet temperature 
is below 600 degrees Fahrenheit, and the failure of the rule to 
specifically require EGUs to keep inlet temperature data and report it 
to the Pennsylvania Department of Environmental Protection (PADEP).
    In Sierra Club v. U.S. EPA, No. 19-2562 (3rd Cir. 2020), on August 
27, 2020, the Third Circuit ruled in favor of the Sierra Club and 
vacated the Agency's approval of the SIP submission on all three 
challenged portions of Pennsylvania's plan. On September 15, 2021, EPA 
proposed to disapprove the specific SIP provisions for which the court 
had vacated EPA's prior approval. See 86 FR 51315.

II. Summary of SIP Revisions Being Disapproved

    The purpose of this action is to partially disapprove those 
portions of Pennsylvania's RACT II SIP for which the Third Circuit 
vacated EPA's approval. 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 set a ``presumptive'' RACT limit for coal-
fired combustion units equipped with SCR at 0.12 lbs NOX/
MMBtu. The court held that the selected limit was arbitrary and 
capricious, in light of evidence submitted which demonstrated that EGUs 
covered by 25 Pa. Code 129.97(g)(1)(viii) had achieved much lower 
emission rates in the past and that other states had adopted lower RACT 
NOX limits for similar coal fired sources. Sierra Club at 
299-303. The court also held that the 600-degree Fahrenheit 
``exemption'' to the 0.12 lbs NOX/MMBtu was arbitrary and 
capricious as the record failed to support why the exemption was needed 
or why the threshold was set at 600 degrees. 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.
    The court also took issue with the recordkeeping and reporting 
requirements of 25 Pa. Code 129.100(d), stating ``[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. The court agreed 
with the Sierra Club that language in 25 Pa. Code 129.97(g)(1)(viii) 
was too vague to be enforceable and would not ensure that subject 
sources keep specific SCR temperature inlet data, report that data to 
PADEP, and make it available to the public. 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.''

[[Page 50258]]

Id. at 297. For these reasons, EPA now finds that the previously 
approved recordkeeping and reporting provisions are inadequate in this 
specific context. Other specifics and the rationale for EPA's proposed 
action are explained in the notice of proposed rulemaking (NPRM) and 
will not be restated here.

III. EPA's Response to Comments Received

    EPA only received comments on this proposed disapproval from the 
Sierra Club. Sierra Club's comments were supportive of EPA's proposal 
to disapprove those elements of PA's RACT II SIP for which EPA's prior 
approval was vacated and remanded to EPA by the U.S. Third Circuit 
Court of Appeals. Many, if not most, of the Sierra Club's comments 
focus on providing support for a lower RACT emission limit at these 
sources in any future SIP submitted by Pennsylvania or FIP issued by 
EPA. Therefore the comments are outside the scope of this rule, which 
merely disapproves those portions of Pennsylvania's NOX RACT 
SIP setting limits for five EGUs equipped with SCR.

IV. Final Action

    Consistent with the Third Circuit's decision, and based on the 
reasoning contained therein, EPA is finalizing a disapproval under CAA 
section 110(k)(3) for certain provisions of the Pennsylvania RACT II 
rule for which EPA's prior approval was vacated and remanded to EPA by 
the court. EPA's 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 
disapproving 25 Pa. Code 129.97(g)(1)(viii), and the 600-degree 
temperature threshold and 0.12 lbs NOX/MMBtu limit are 
contained entirely within this section, no additional Federal 
regulatory revisions are necessary to address the court's holding that 
EPA's approval of the 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, EPA will be obligated under CAA section 110(c)(1) to 
promulgate a FIP within two years after the effective date of this 
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. EPA proposed such a FIP on May 25, 
2022. See 87 FR 31798. 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 promulgate a FIP within two years of the 
date of its decision if the Agency has not approved a SIP correcting 
the identified deficiencies in the RACT II rule within this 
timeframe.\1\ Sierra Club, 972 F.3d 290, 309. In addition, this final 
partial disapproval would trigger mandatory sanctions in accordance 
with the timelines and provisions of 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.
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    \1\ On May 26, 2022 and June 9, 2022, PADEP submitted case-by-
case RACT determinations for the affected facilities that are still 
in operation as revisions to the Pennsylvania SIP. EPA has not yet 
evaluated those submittals and they are outside of the scope of this 
action. Any action on those proposed SIP revisions will be at a 
later date, and under a separate action.
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V. Incorporation by Reference

    In this document, EPA is finalizing revisions to a prior 
incorporation by reference. See 84 FR 20274 (May 9, 2019). In 
accordance with requirements of 1 CFR 51.5, EPA is finalizing the 
removal of the incorporation by reference of 25 Pa. Code 
129.97(g)(1)(viii) into the EPA-approved Pennsylvania SIP, as described 
in section IV of this preamble. 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 rule of EPA's approval, and will be incorporated by reference in 
the next update to the SIP compilation.\2\
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    \2\ 62 FR 27968 (May 22, 1997).
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VI. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
(E.O.) can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action as defined by 
E.O. 12866 and was therefore not submitted to the Office of Management 
and Budget (OMB) for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the PRA, because this SIP partial approval and partial disapproval does 
not in-and-of itself create any new information collection burdens, but 
simply partially approves and partially disapproves certain State 
requirements for inclusion in the SIP.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities. This SIP 
partial approval and partial disapproval does not in-and-of itself 
create any new requirements but simply partially approves and partially 
disapproves certain pre-existing State requirements for inclusion in 
the SIP.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. This action does not impose additional requirements 
beyond those imposed by state law. Accordingly, no additional costs to 
state, local, or tribal governments, or to the private sector, will 
result from this action.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will 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.

F. Executive Order 13175: Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175, because the SIP EPA is disapproving would not 
apply on any Indian reservation land or in any other area where the EPA 
or an Indian tribe

[[Page 50259]]

has demonstrated that a tribe has jurisdiction, and will not impose 
substantial direct costs on tribal governments or preempt tribal law. 
Thus, Executive Order 13175 does not apply to this action.

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

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive order. This action is not subject to 
Executive Order 13045 because this SIP partial approval and partial 
disapproval does not in-and-of itself create any new regulations, but 
simply partially approves and partially disapproves certain pre-
existing State requirements for inclusion in the SIP.

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

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA directs the EPA to use voluntary 
consensus standards in its regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. The EPA 
believes that this action is not subject to the requirements of section 
12(d) of the NTTAA because application of those requirements would be 
inconsistent with the CAA.

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

    As described in the NPRM for this action, the EPA lacks the 
discretionary authority to address environmental justice in this 
rulemaking.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

L. 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 October 17, 2022. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule 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 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, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements.

Adam Ortiz,
Regional Administrator, Region III.

    For the reasons stated in the preamble, the EPA amends 40 CFR part 
52 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)(1) is amended by 
revising the entry for ``Section 129.97'' to read as follows:


Sec.  52.2020   Identification of plan.

* * * * *
    (c) * * *
    (1) * * *

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                                                           State                                 Additional
        State citation              Title/subject        effective      EPA approval date     explanation/Sec.
                                                           date                               52.2063 citation
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                          Title 25--Environmental Protection Article III--Air Resources
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                                                  * * * * * * *
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                                       Chapter 129--Standards for Sources
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                                                  * * * * * * *
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                         Additional RACT Requirements for Major Sources of NOX and VOCs
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                                                  * * * * * * *
Section 129.97................  Presumptive RACT             4/23/16  8/16/2022, [INSERT    Partial Disapproval.
                                 requirements, RACT                    Federal Register      See 40 CFR
                                 emission                              Citation].            52.2023(o).
                                 limitations, and
                                 petition for
                                 alternative
                                 compliance schedule.
 
                                                  * * * * * * *
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* * * * *

0
3. Section 52.2023 is amended by adding paragraph (o) to read as 
follows:


Sec.  52.2023   Approval status.

* * * * *
    (o) EPA disapproves 25 Pa. Code 129.97(g)(1)(viii), submitted on 
May 16, 2016 to address the RACT requirements under CAA sections 
182(b)(2)(C), 182(f), and 184 under the 1997 and 2008 ozone NAAQS.
[FR Doc. 2022-17579 Filed 8-15-22; 8:45 am]
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