[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
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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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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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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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